House debates

Tuesday, 27 October 2009

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009

Second Reading

Debate resumed from 24 June, on motion by Mr McClelland:

That this bill be now read a second time.

6:34 pm

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

I am pleased to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I would like to make some preliminary remarks in order to place this bill in its full context, which is transnational organised crime and Australia’s response from the perspective of our law enforcement agencies. We need to understand the environment in which organised crime operates in the modern world. Those who work in the field combating organised crime often describe it as a threat, no less damaging and just as deliberate as national security. The CEO of the Australian Crime Commission, John Lawler, stated in an address to the Financial Review Defence Conference in September this year:

… in the last two decades alone, organised crime groups have:

contributed to the fall of the Japanese government through massive systemic corruption,
been behind activities that represent roughly 12 per cent of Italy’s entire economy, and
taken control of most of Russia’s 200 banks and half of its financial capital.

Organised crime is deliberate with far-reaching consequences. Current Australian Crime Commission intelligence suggests the cost of organised crime is between $10 and $15 billion each year. A significant proportion of this is being sent offshore and illicit drug trafficking represents the source of approximately half of these funds. Modern-day organised crime involves the laundering of billions of dollars using complex corporate structures and financial instruments.

Our agencies are having some success in this fight. The Australian Crime Commission’s task force Gordian, which went from May 2005 to June 2007 and investigated networks and structures used by organised crime groups, is a good example. It investigated how those groups financed criminal enterprises, laundered money and evaded tax. As a result, 16 criminal syndicates have been disrupted and 73 persons charged for laundering what is alleged to be in excess of $93 million and for drug and other offences. This has significantly disrupted the activities of an organised crime syndicate with well-developed channels allegedly used to siphon the profits of drugs to South-East Asia. In this case, the money launderers had infiltrated an international airline and international banks.

The challenge that we face is that when you place increasingly sophisticated organised criminal syndicates in today’s unpredictable and ever-changing business environment there are opportunities for criminals and there are gaps in intelligence. Criminals are able to hide their activities and remain undetected within an industry and white collar criminals are able to mask their illegitimate activities behind perfectly legitimate ones. The landscape is constantly changing. We do not know the identity of all of the criminal groups operating within our jurisdiction. It takes time, resources and expertise to understand and untangle criminal economic movements.

Legitimate businesses may unwittingly provide facilities and financial instruments that can be used for money laundering or fraud. High-level criminal groups can expand operations quickly into an area, carry out their activities and then move on into something else. The Australian Crime Commission has an important intelligence-gathering function. This intelligence is shared with partner agencies, including the AFP, the state police forces and the Australian Customs and Border Protection Service to name a few. The Australian Crime Commission is looking for the criminal footprint in datasets and where there are opportunities for intervention and where the weaknesses lie. It is not just about arrests and seizures but about collecting information.

Part of this intelligence collection involves data matching. It might, for example, show that those on the ASIC database of company directors may also be known identities within, say, outlaw motorcycle gangs. There is also the example of the high rollers at our casinos. Some may be money launderers, for example. An individual—and this is from real life—completely off the radar of law enforcement spent $13 million at a casino in one year. Further investigation finds that he is collecting Centrelink benefits. This instance led Centrelink to perform more such data matches with the ACC of its customers and those who the casino reports as dealing in cash amounts above $10,000, according to its obligations with AUSTRAC.

This money finds its way offshore. There are three ways that this can happen. Criminals can use the regular financial system, which should be picked up by AUSTRAC through the reporting requirements that entities such as remitters have. There is also trade based money laundering. For example, an academic took a segment of trade based data, looked at the invoices and found that seven per cent of the total was under invoiced. The proceeds of crime were moving from one country to another. The third way is called ‘cuckoo smurfing’. This is when criminals replace legitimate money intended for legal transfer into Australian bank accounts with the proceeds of crime. The original funds are then used overseas. We should consider the impact of potentially billions of dollars going offshore in terms of lost jobs, lost projects, lost infrastructure and lost revenue.

The lifeblood of serious and organised crime is money. We have to identify and attack those criminals who are generating the most illicit wealth. Literally billions of dollars every year leave the Australian economy. This criminal wealth reappears in the legitimate economy. The movement of money between the two creates vulnerabilities for criminals and the opportunity for law enforcement to identify and attack organised crime through its finances. The profits are extremely lucrative. They are estimated by the Australian Crime Commission to generate $200 from every $1 invested. So examining the real-time money flows allows us to pursue money laundering offenders.

Investigators need a range of capabilities, including telephone intercepts, covert sources, surveillance and analytical capacity. They need adequate resources to do their job properly. That is the operational perspective. The legislative perspective involves parliaments providing the right legislative environment. This bill is part of the comprehensive national response to combat organised crime.

Criminologist John Walker has stated that we are seeing a failure of traditional policing to fight the drugs trade. When you consider the statistics on drug use, the flow of drug money offshore and the drugs that are clearly slipping into this country through a border protection net that is full of holes, you can sense the frustration of our police services in dealing with what is rapidly becoming an economic problem. The introduction of the unexplained wealth provisions in the bill before us recognise an unfortunate fact: those sitting at the boardroom table of organised crime groups are not the ones going to jail or even going to court.

As a member of the Joint Committee on the Australian Crime Commission, I was part of that committee’s investigation of, among other things, the confiscation of the proceeds of crime. While all Australian jurisdictions have civil forfeiture regimes—that is, the confiscation of assets is based on a civil rather than a conviction standard of proof—the Northern Territory and Western Australia go one step further, allowing the deputy police prosecutors to apply to the courts for a confiscation order if a person has unexplained wealth. This means that in those jurisdictions it is not necessary to demonstrate on the balance of probability that the wealth has been obtained by criminal activity. Instead, it places the onus on an individual to prove that their wealth was acquired by legal means. As members of the committee, we heard both sides of the argument for and against unexplained wealth provisions.

There is, I should add, some support in international law for the adoption of such provisions at Commonwealth level from the Interpol General Assembly, which resolved in 1997 that unexplained wealth is a legitimate subject of inquiry for law enforcement institutions in their efforts to detect criminal activity and that, subject to the fundamental principles of each countries domestic law, legislators should reverse the burden of proof and use the concept of reverse onus in respect of unexplained wealth. The Police Federation of Australia argued strongly for unexplained wealth levels at the Commonwealth level. I will quote from their submission to the inquiry, because it sums up the case very well:

Do Australian police know who is involved in organised and serious crime in Australia? Do we know who they are? The answer is yes. Can we prove beyond reasonable doubt that these criminals are involved directly in those crimes? The answer is no. Are we aware that these criminals possess or have effective control of unexplained wealth? The answer is yes. Can these criminals or those holding the assets and wealth for these criminals explain on the balance of probability that they legally obtained that wealth or assets? The answer is no. We do not have to link anything to a crime. It is about them on the balance of probability explaining that they have got legally obtained wealth … We have not got any legislation in Australia to deal with that at the Commonwealth level … Unexplained wealth is the easiest way as a crime prevention method to stop further crime, because, if the individuals who are holding onto these assets cannot explain them … the tendency is to just hand it over because they do not want to get into a debate about whether they are involved in criminality or not.

Arguments against unexplained wealth laws had as their main concern the reversal of the onus of proof. The Law Council stated that such laws undermine the presumption of innocence, infringe on the right to silence, have insufficient appeal rights and may be applied in an arbitrary fashion. The Australian Council of Civil Liberties stated that, from their point of view, existing confiscation laws are working adequately.

I now turn to the specific provisions of the bill before the House. This bill is a very important one. It is intended to implement a national response to organised crime. All members of the coalition are acutely aware of the great cost including human costs that organised crime imposes on society. Our record is a proud one of developing and implementing innovative methods to defeat this national scourge. However, we are also conscious that the measures used to combat organised crime have the potential to sweep up the innocent in their net. Great powers given to our law enforcement authorities, despite our best intentions, are also capable of producing injustice and oppression if the use of those powers is not properly circumscribed and subject to effective oversight. When introducing significant new anti-crime measures, as legislators, we must always weigh up the potential for and consequences of abuse of those measures. The key proposals of this bill are criminal asset confiscation and unexplained wealth.

Schedule 1 amends the Proceeds of Crime Act by introducing unexplained wealth orders to the confiscation processes. This targets wealth that a person cannot demonstrate to have been lawfully acquired. If a court is satisfied that an authorised officer has reasonable grounds to suspect that a person’s total wealth exceeds the value that has been lawfully acquired it can compel the person to attend court to prove on the balance of probabilities that the wealth was not derived from offences with a connection to Commonwealth power. If the person fails to meet this onus, the court must order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth. Restraining orders are available in aid of this order and in advance of such an order.

At the time of applying for a restraining order, the DPP need not prove that the property is subject to the person’s effective control but must state the grounds for such a suspicion. If these requirements are met, the restraining order must be made even if there is no risk that the property will be disposed of or otherwise dealt with. It may also apply in relation to property that is not yet in the possession of the suspect. Property may be excluded from the scope of the order if the court is satisfied that it belongs to another person and is not under the suspect’s effective control.

A restraining order will cease to apply if the DPP has not applied for an unexplained wealth order within 28 days or if an unexplained wealth order is refused and avenues of appeal are closed or otherwise disposed of. The bill also provides for time limited asset-freezing orders in aid of the Proceeds of Crime Act. These apply for three days and are directed to accounts held by financial institutions.

Schedule 2 amends the regime applicable to non-conviction based orders. Currently there is a limitation period which precludes confiscation if offences are not detected until more than six years after the offence was committed. The review recommended extension of the limitation period to 12 years but the bill proposes removing the time limit altogether. Amendments are also proposed to ease the recovery of legal costs by legal aid commissions from restrained assets.

As to controlled operations, assumed identities and witness identity protection, the bill proposes amendments to the Crimes Act 1914 in response to the High Court’s decision in Gideon v Commissioner of the New South Wales Crime Commission (2008), which placed in doubt the protection of participants in a controlled operation. A controlled operation is one in which undercover law enforcement officers are authorised to do certain things that would otherwise be illegal in order to obtain evidence of a serious offence. The amendments to the assumed identities regime will introduce mutual recognition provisions to permit undercover officers lawfully to obtain identity documents in other jurisdictions. The witness identity protection scheme applicable to undercover officers will enable certificates issued in one jurisdiction to be recognised in other jurisdictions.

In regard to joint commission, the bill proposes to amend the Criminal Code Act 1995 to cover circumstances in which there is an agreement to commit an offence and an offence is committed under that agreement. Recent court decisions have raised doubt that the common-law principle of joint criminal enterprise is encapsulated in the code. The concept is broader than conspiracy, procuring or complicity and is intended to ensure that full criminal liability attaches to participants.

As to telecommunications interception and criminal organisations, the bill proposes to amend the Telecommunications Interception and Access Act 1979 to include in the definition of ‘serious offence’ associating with, contributing to, aiding and conspiring with a criminal organisation or a member of that organisation for the purpose of supporting the commission of prescribed offences. These are recently introduced state and territory offences commonly known as the bikie laws. Telecommunications interception will be made available to state and territory law enforcement agencies for investigation of these offences.

The provisions of this bill relating to undercover operations and joint commission of offences make relatively technical amendments. However, the provisions relating to unexplained wealth raise significant civil liberties concerns and have generated substantial criticism. The unexplained wealth provisions are invasive. It is important that this bill should be placed under close scrutiny to ensure that adequate safeguards exist and that the arguments in favour of the proposals are properly articulated and justified.

The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which delivered its report on 17 September. The evidence to the committee included detailed submissions from the Law Council of Australia and all of the principal Commonwealth law enforcement and prosecution agencies. Significant concerns were expressed, in particular about the unexplained wealth provisions, by the Law Council, Civil Liberties Australia and members of the committee across party lines. Particular concerns were that an unexplained wealth order was mandatory rather than discretionary; the only link to any wrongdoing was an authorised officer’s suspicion that a person’s wealth was linked to any Commonwealth offence, state offence with a federal aspect or foreign offence; and the safeguards against abuse of these powers were very limited.

The committee recommended quite extensive amendments to the bill. The most important of the committee’s recommendations are that a court should have a discretion to refuse to make an unexplained wealth order; the ground upon which an officer suspects that a person’s wealth exceeds his or her lawfully acquired wealth must be specified in any supporting affidavit; and, in relation to joint commission of offences, there should be safeguards where an accused person terminated his or her participation and took reasonable steps to prevent the commission of an offence.

The government has circulated amendments which purport to give effect to some of these recommendations, excluding those relating to joint commission of offences. However, it is still not clear whether the safeguards proposed are adequate. The sole ground for the exercise of any discretion by a judge not to make an unexplained wealth order is if it is ‘not in the public interest’ to do so. Indeed, some aspects of the legislation have been tightened, in particular those relating to hardship caused to dependants by the making of an unexplained wealth order.

Despite our heartfelt support for measures designed to combat organised crime, and the fact that these measures will undoubtedly assist our law enforcement agencies in that vital task, there is still a real risk that these laws are open to abuse. In the course of consultations on this bill, we have had many examples of the great benefit they would be in the investigation of the kingpins of organised crime. That is not in dispute. We could hear many more examples and we would agree in each case that unexplained wealth orders would be extremely useful. But what we need to hear is what would happen if the innocent were caught up in the process by an overzealous prosecutor. These things happen. We live in a society where the right to privacy is respected and where ordinary people have the right to live their lives without explaining their lifestyle to the authorities or anyone else or having their assets frozen or confiscated on nothing more than an officer’s suspicion. This is a society that operates under the rule of law, and we on the coalition side will ensure that the rule of law is respected. Organised crime must and will be brought to heel, but it must not be done at the cost of ruining innocent lives.

We are confident that the appropriate balance can be struck. The government’s amendments are a welcome start. The coalition have further amendments for which we will seek the government’s approval, failing which we will move them in the Senate. I thank the House.

6:54 pm

Photo of Chris HayesChris Hayes (Werriwa, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. On 4 December last year, the Prime Minister made Australia’s first national security statement to the House. He said:

Organised crime more broadly is a growing concern for Australia, one the government is determined to combat.

To put that in context, the Australian Crime Commission—and I have the privilege of being a member of  the joint parliamentary oversight body, the Joint Committee on the Australian Crime Commission—estimates that Australia loses in the vicinity of $10 billion each year to organised crime. That is essentially the backdrop to the Prime Minister’s comment about the need to combat organised crime. He went on to say:

The government will develop two initiatives in the related areas of border management and serious and organised crime. We will strengthen border management by simplifying arrangements and improving coordination across all agencies. Second, we will clearly define the role of the Commonwealth in combating serious and organised crime and enhance coordination among Commonwealth agencies.

He spoke about us being very fortunate having ‘highly capable police services’, saying:

We have highly capable police services which respond to a spectrum of challenges, from threats to public safety to terrorism, and emergency response organisations that protect the community in our most vulnerable times.

The Prime Minister laid out the platform of where we are going to act in terms of our fight against organised crime in the security statement. He said we were going to be tough on crime and that we were going to give to those respected people on the thin blue line, who protect our society, the tools they need to be able to get on and do their job more effectively.

I rarely let an opportunity to personally acknowledge the contributions of our men and women in uniform go by. They are involved in the fight on our behalf against the global onslaught of organised crime. I think my respect for the police is a sentiment that is shared by everyone in this House. As a matter of fact, it was only on the 29th of last month that we had Police Remembrance Day, where we recognise the men and women who have paid the ultimate sacrifice in protecting our community. There are all those vacant plaques at the national police memorial, and we know, regrettably, they will have people’s names on them in due course. It is a dangerous occupation, and we are extremely grateful to the people who have that special sort of courage and wear the uniform of a police officer.

I had the opportunity only last week to address the Police Association of South Australia’s annual conference, entitled ‘In harm’s way’, and I in fact talked to them about this very bill before the House. I take this opportunity to congratulate Mark Carroll, the president of the South Australian Police Association, on a very well run conference. As you would expect, it looked at industrial relations issues that involved his members, but it also had a very clear focus on the professional issues involved in contemporary policing, including the need for modern tools and equipment to combat crime.

At any time, this country faces a threat from a wide range of different sources to our people, our institutions and our economy; even our technologies are placed at risk by organised crime. Organised crime clearly affects many areas of social and economic activity, inflicting substantial harm on the community, business and indeed government. In contemporary law enforcement, whilst it is politically palatable for some, it is overly simplistic to evaluate our police services simply on arrest rates. That really misses the mark.

The fact that every time a crime is committed, there is a victim—a member of the community, or the community itself, is being harmed. As we are all aware, an arrest and subsequent conviction does not undo the harm that is inflicted on a victim. In protecting our communities, we should be doing more to prevent crime and, in terms of criminal enterprise itself, and to disrupt its activities. To achieve this we need to develop consistent and common strategies that attack those underpinning elements of organised crime. Therefore, it is essential to actually look at the business model of crime itself. There is no doubt in my mind that the increasingly sophisticated and aggressive nature of organised crime requires from us, the legislator, a tough response. Our communities expect nothing less from us.

It is important that we have strong, consistent and effective laws to combat serious and organised crime across the nation. Specifically, the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 will implement reforms to the Commonwealth laws as part of a comprehensive national response to combating serious and organised crime. This reform is designed to equip our police with the tools they need to defeat the refined methods used by modern day criminals. We are not talking about thugs in balaclavas—the increasing sophistication of organised crime in this country is astronomical. They certainly can acquire the assets they do not have. We must make sure that our police are not fighting crime on our behalf with both hands tied behind their backs. We have to level the playing field. If people tell you that we are winning the fight on crime, they are wrong. Organised crime is developing at a significant pace and we must be there, taking sufficient steps to combat its further development.

The bill as introduced focuses on the confiscation of the proceeds of crime whilst strengthening the national law enforcement coordination capability. It is a two-pronged approach. Firstly, you remove the profitability of a criminal activity and, secondly, you increase the likelihood of criminals being caught. The bill seeks to implement measures agreed to between the Commonwealth, states and territories and will strengthen the criminal asset confiscation regimes; introduce the new provisions of unexplained wealth; enhance police power to investigate organised crime, including model cross-border investigation powers through controlled operations, assumed identities and witness identity protection; extend criminal liability for all individuals who jointly commit an offence; and broaden the list of offences where telecommunication interception powers will be available to law enforcement agencies.

Fundamental to this approach is the introduction of the new unexplained wealth provisions. This is a new approach—one which has been developed in Western Australia under their state laws and, indeed, it has been introduced in a more refined way in the Northern Territory. It is one that attacks the business model that underpins crime. Crime is there with a profit motive and therefore this approach is designed to attack that profit motive and to put at risk the greater element of finances behind not only the single criminal enterprise but all assets that the criminal might have in their possession. This is achieved by also having a reverse onus of proof. Under this legislation, the onus of proof will be on the accused—they will need substantiate that their assets were gained by legal means. That is pretty significant because what it does for serious and organised crime is to put at risk more than just the proceeds of the crime itself. That will be a key component to these reforms.

These provisions will target people who profit from crime and those whose wealth exceeds the value of their lawful earnings. In order to prevent and disrupt crime we must address various aspects that drive criminal enterprises. Central to this is to comprehend that most criminals are by nature business people. I do not make any apology for putting it that way—if you look at how this bill is going to act against criminal enterprise you must look at those who operate these enterprises. They are clearly businesses. Most assuredly they are illegal ventures; nevertheless, they are businesses with a very clear and distinct profit motive. They seek a return on capital, and they will seek to operate in areas of least resistance. They will seek to maximise the return on their investment. In many cases, people who organise and profit from crime are not directly linked to the commission of the offence. They will seek to distance themselves from the crime itself in order to avoid prosecution or confiscation actions.

We have all heard the stories of profits from a particular criminal enterprise being divested through various forms, either through family or into other areas of enterprise. Under these provisions, they can be tracked and people will be held accountable for what they have accumulated. It is then with the reverse onus of proof that it is up to them when called upon in accordance with the law to substantiate the accumulation of their wealth. However, unlike the confiscation these new and unexplained wealth orders will not require proof of a link to the commission of a specific offence. Also, the significance as stated earlier, is that with the unexplained wealth provision there will be a clear and effective reverse onus of proof. Vitally, these measures will target the perpetrators and also the profits of organised crime and will provide police with the tools they need to combat an increasingly sophisticated methods used by organised criminal syndicates.

As I said at the beginning of this speech, I am proud to be a member of the parliamentary joint committee oversighting the Australian Crime Commission. It is in that capacity that I can advise the House that the committee has recently—over the last 12 months or so—held a review of legislative arrangements to effectively outlaw various elements of serious and organised crime groups.

During that inquiry we travelled across the country. We visited most police commissioners and met with other senior officers, who also gave evidence to our hearings. I have to say I was a little disappointed that, although the committee had access to the leaders of all the police forces in the country, we struggled to get a common position from our chief law enforcement officers. As a matter of fact, it was left to the Police Federation of Australia, which represents 52,000 sworn police officers across the nation, to put a very clear, unambiguous position to our inquiry. The PFA called upon the committee to recommend the development of unexplained wealth legislation as a key measure in attacking organised crime. This is evidence of the importance of a national policing voice and I again congratulate the PFA on being able to achieve that position and also in being able to advocate on behalf of all police officers in this country.

During the course of the inquiry the committee specifically examined a number of international legislative arrangements to assess their effectiveness in the fight against serious and organised crime. As a consequence, a delegation of the committee took evidence from jurisdictions in North America, the United Kingdom and Europe. Interestingly, the committee’s report and findings with respect to the legislative responses of international jurisdictions to serious and organised crime were tabled in the parliament in June this year. It is worth noting that this report enjoys bipartisan support—as does, I hope, this piece of legislation.

I would like now to discuss with you the five key findings of the delegation’s report with respect to tackling serious and organised crime. Consistent across the globe was the view that it was important to follow the money trail when addressing organised crime; that there was a need for information sharing and greater cooperation amongst law enforcement and other agencies, both within governments and between governments; that there were benefits to be gained in developing measures to prevent organised crime, rather than simply reacting to it; that political will plays a critical role in combating serious and organised crime; and that there was a need for governments to take a holistic approach to tackling organised crime, through a package of legislative and administrative arrangements.

They were the key and consistent positions that the committee heard, not only across Australian jurisdictions but across international jurisdictions. I think they are very relevant in terms of our tough approach in combating organised crime. From the international experience it was clear that law enforcement strategies which target the business model, including financial and material assets of organised crime, were crucial for disrupting criminal activity.

Mr Raffaele Grassi, from the Italian National Police, put it best when he told the delegation that criminal ‘members are prepared to spend time in prison, but to take their assets is to really harm these individuals’. I have long been attracted to the concept of using unexplained wealth as a means to remove the financial incentives associated with organised crime, and whilst this will challenge some aspects of individual liberties my position has always been that we must, first and foremost, do what is necessary to protect our community. If, for whatever reason, organised crime is allowed to flourish it will undoubtedly have a devastating impact on our people, our community and our economy. The security of the nation and its people must remain our highest priority.

That brings me back, in conclusion, to what the Prime Minister had to say on 4 December last year. He committed this government to introducing measures designed to combat serious and organised crime. He committed to developing measures to empower our police with the tools that they need to act on our behalf to protect our communities in respect of serious and organised crime. The legislation before the House, the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, does precisely that. It has the support of the state and territory governments and it will now lay the benchmark in terms of attacking organised crime by using unexplained wealth as a means of addressing this scourge on our society.

We have a responsibility to do that. As I have said, I know this will intrude on various perceived liberties of individuals—there is no question about that—therefore various safeguards have been built in to ensure that, where appropriate, those liberties are suitably protected. If people think that just because we are in the 21st century we are winning the fight against crime, it is time to think again. We need to have the tools necessary to compete with and break serious and organised crime enterprises. That is what this legislation will do. It is designed, unashamedly, to be tough—but only to protect our community. On that note I commend the legislation to the House.

7:14 pm

Photo of Luke SimpkinsLuke Simpkins (Cowan, Liberal Party) Share this | | Hansard source

I appreciate the opportunity to make a contribution on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 because it has always been my belief that the strongest pressure on criminals needs to be applied, from residents on our streets keeping watch, right up to mandatory sentencing and such matters as are raised by this bill. From a personal perspective, I endorse strengthened criminal asset confiscation powers, the protection of witnesses in controlled operations, the wider use of telecommunications interception for offences involving criminal organisations and greater capacities in dealing with the joint commission of criminal offences.

This bill deals with the need to amend not only the Crimes Act 1914, the Criminal Code Act 1995 and the Telecommunications (Interceptions and Access) Act 1979 but also the Proceeds of Crime Act 2002. I would firstly like to deal with the bill as it relates to the Proceeds of Crime Act 2002. The POC Act was a great step forward in hitting criminals where it hurts: with the seizure of assets. The 2006 Sherman report outlined enhancements that were recommended by law enforcement agencies. In schedule 1 of this bill there is an unexplained wealth provision that will allow ‘prove it or lose it’ capacities for agencies in dealings with those who were not actually involved in the specific commission of the offence or offences. This will mean that those who may fund or support organised crime will still be liable to having their assets seized. Once an agency can demonstrate to a court reasonable grounds to suspect that a person’s wealth and assets exceed their lawfully acquired wealth and assets, that person can be summonsed to court to prove that their wealth is not derived from offences.

This bill also enhances the power of the police to investigate organised crime through implementing model laws for controlled operations, assumed identities and witness identity protection. It addresses the joint commission of criminal offences and facilitates greater access to telecommunications interception for criminal organisation offences. The schedule 1 changes on unexplained wealth are to amend the Proceeds of Crime Act 2002 in order to strengthen the Commonwealth criminal assets confiscation regime in chapter 2 of the act. Unexplained wealth orders are to target wealth that any person cannot prove that they have lawfully acquired.

The changes provided for in this bill have been influenced by the successful laws in Western Australia and the Northern Territory. It was in 2000 that Richard Court’s Liberal state government passed laws to allow the seizure and sale of assets used for or achieved by criminal activity. In 2008, the laws were widened so that properties where sex crimes had taken place and where the offender was linked to that property could be seized and sold. The Sunday Times recently reported that more than $840,000 had been generated by the sale of properties owned by two sex offenders. This money is returned to the community in grants. I think these actions are right and appropriate. I hope that the sale of such properties will continue to generate benefits for the community and in some albeit small way offset the material cost to society imposed by sex criminals. If only the social and personal damage done to victims could be offset in that way.

The amendments in schedule 2 are to introduce freezing orders to ensure that assets are not dispersed, to remove time limitations on orders, to provide for non-conviction based restraint and the forfeiture of instruments of serious crime, to enhance information sharing and to reimburse Legal Aid Commission legal costs from the Confiscated Assets Account. The purpose of these particular amendments is to improve the ability of law enforcement agencies to target organised crime figures who get the biggest financial benefit from offences but can rarely be linked to the commission of an offence.

I would in particular like to make comment on part 4 of the schedule, relating to the disclosure of information. It has long been my view that the sharing of information relating to criminal behaviour and obtained under the auspices of one act relevant to crime should be able to be disclosed to another agency that has investigation responsibilities, as well as being able to be used in proceedings under another act related to crime. As was identified in the Sherman report and as is noted in the explanatory memorandum to this bill, the New South Wales Supreme Court ruling in the Commonwealth DPP v Hatfield case in 2006 stated that information obtained in an examination under part 3-1 of the POC Act could not be disclosed for any other purpose. Clearly it was not intended that information obtained could only be used for dealing with the question of confiscation of property. Information obtained using other gathering powers may have also been at risk. The amendments in this bill will overcome that possibility and ensure that agencies will be able to share information obtained. This effectively ensures that the prevention and investigation of serious criminal offences will not be undermined.

The schedule 3 changes are there to implement model laws for controlled operations, assumed identities and witness identity protection. They are intended to prosecute multijurisdictional criminal activity, a type of crime which is becoming more common due to the sophistication of organised criminal groups and in particular those involved in terrorism or transnational crime, including drug trafficking. These model laws will aid the authorisations required for a single jurisdiction to be recognised in other jurisdictions.

In relation to schedule 3, I will say that during my time in the Australian Federal Police I was aware of a number of operations which were determined to be controlled operations. That was basically where a member of the AFP was required to assume a false identity and even engage in conduct that broke laws, all in the pursuit of evidence of a serious criminal offence. I would imagine that the number of controlled operations would be far greater now and the governance issues and guidelines would be far more stringent. There are risks involved with operating in this twilight zone of infiltration, investigation and the eventual application of justice. It requires strong safeguards, and I have every confidence that organisations such as the Australian Federal Police have the governance measures and the adherence to legislation to carry out these important roles.

To go back to my time in the Federal Police, when I worked in Sydney I met a serving AFP officer who, as part of a controlled operation, knew Sallie-Anne Huckstepp very well. She was a prostitute and drug addict. Her name is somewhat notorious as she was murdered in 1986 by the underworld figure Arthur ‘Neddy’ Smith. Those were the days when the former New South Wales detective Roger Rogerson had, some time earlier, fallen from grace. As a very new constable, I formed the view that I strongly favoured good governance arrangements in those sorts of operations, although I had no direct personal experience in anything more than surveillance and electronic listening posts—unless speeding under orders in unmarked surveillance cars was classified as some sort of controlled operation, and clearly it was not. Perhaps it was, however, one example of where the governance arrangements in the mid-1980s left something to be desired.

The schedule 4 amendments to the Criminal Code Act 1995 will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by considering as a group the conduct of offenders who operate together. The purpose of the amendments to the Telecommunications (Interception and Access) Act 1979 is to facilitate greater access to telecommunications interception for criminal organisation offences.

I would also make some comments about organised crime and the focus on outlaw motorcycle gangs. The media has in the past week widely reported the foundation some time ago of the United Motorcycle Council, representing gangs across Australia, which is soon to open a branch representing seven gangs in Western Australia. The Sunday Times reported that a PR firm had been engaged by the United Motorcycle Council and even ran a story on the young female director. No doubt the United Motorcycle Council would be delighted with the publicity. The PR firm would also be pleased with the profile generated. I would imagine that such a puff piece helped in their ethical concern over the decision to take on these clients. I am sure they have as much trouble sleeping as those members of the legal fraternity that have represented the outlaw motorcycle gangs in past court cases; however, that is a personal opinion. On the high side, the Sunday Times article says that the United Motorcycle Council was rejected originally by a few PR companies. It would seem that money—or fame—is not everything.

Whilst at a local shopping centre some months ago I was approached by a very friendly man, whose first question to me was what was my attitude toward Colin Barnett’s bikie law—Colin Barnett being the Premier of Western Australia. I took this as being a response to a number of media reports at the time that talked about tough laws being brought into the Western Australian parliament, although I was not familiar with the detailed proposals. This man was friendly and had a child with him, but he was tall and appeared to spend much of his time lifting heavy weights—certainly more time than I spend.

I assumed that he had a vested interest in the outcome of the passing of laws by the WA parliament, but it was clearly apparent that he stood against it. He then told me that he was, in fact, the president of one of the outlaw motorcycle gangs in Perth. I said to him that it was the perception of most people in Perth that members of the motorcycle gangs were involved in crime and particularly drug crime. He told me that he was the owner of a number of small businesses, like tattoo parlours. He also told me that the gang was more like a supportive brotherhood. He went on to say that if a member needed help, all the other members would drop everything to lend assistance, regardless of whether it was even in the middle of the night. I would imagine that what he told me was correct, and that members are obligated to assist other members. Perhaps his gang is different, but when we see images on the news of strengthened clubhouses with high security, these are not images of blokes’ friendship clubs. It is easy to form the perception that there is something to hide and that there are unlawful operations taking place.

I also want to comment briefly on the activities in the last week in Western Australia. It has been widely reported that the Finks motorcycle gang have visited Perth in significant numbers and that they are seeking to establish themselves in Perth. The Western Australian police did an excellent job of shadowing them and applying pressure to keep them in line. There appears to be trouble ahead, with the Finks and the Coffin Cheaters predicted to soon be engaged in a turf war. I think that, once again, the Western Australian police have done the right thing and a strong showing by the police has served to demonstrate that the Finks are not welcome, as indeed outlaw motorcycle gangs are not wanted in Perth. I look forward to the state laws being changed soon to increase the pressure on those that organise and commit crime.

From the outset I have said that I personally support measures that will toughen up the controls and the ability of law enforcement agencies and the courts to deal with the proceeds of crime for the benefit of society. I also support the sharing of information and the protection of those witnesses undertaking their duties on controlled operations. The accountability of criminals will be enhanced by these measures and I look forward to more effective law enforcement operations in the future, as a result.

7:26 pm

Photo of Craig ThomsonCraig Thomson (Dobell, Australian Labor Party) Share this | | Hansard source

I rise to support the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. The Roman philosopher Seneca once said, ‘He has committed the crime who profits by it.’ This bill aims to make it much more difficult for criminals and their friends, associates and families to profit from crime. The bill will amend the Proceeds of Crime Act 2002 to strengthen the criminal assets confiscation regime.

The Prime Minister’s national security statement recognised that organised crime is a growing concern in Australia and a priority issue for this government to address. The Australian Crime Commission estimates that organised crime costs Australia in excess of $10 billion every year. Organised crime is also adaptable and sophisticated and the associated risks carry significant consequences for businesses and the Australian community.

According to the commission’s most recent report these costs are realised in many different ways, including loss of legitimate business revenue, loss of taxation revenue, expenditure on law enforcement and regulatory efforts and managing ‘social harms’. This of course refers to when criminal activity compromises the health, safety and wellbeing of individuals and communities. Let us take a little more detailed look at what law-enforcement agencies like the Australian Crime Commission are up against when it comes to organised crime.

Through much experience of fighting crime, gathering intelligence and convicting criminals over many years, our key agencies know that organised crime groups engineer much of the nation’s serious crime. These groups are often systematic, well-planned enterprises focusing on making money. In many ways they can be compared with conventional businesses, except of course their activities and profits are illicit. Organised crime groups are formidable in terms of their capabilities, resources and resilience. These groups continue to show willingness to plan carefully, to adapt swiftly to changing law enforcement or regulatory responses and to be inventive in their search for new opportunities for profit.

Some of the more enduring networks effectively adopt risk mitigation strategies to protect their illicit profits, and where necessary they behave patiently to ensure the security of the logistic chains and to test to law-enforcement responses. Most groups showed few inhibitions in acquiring expertise from wherever it is available; however, some groups do prefer to deal predominantly with trusted members of their own ethos or ethnicity.

The willingness and ability to engage in corrupt activities is a strong characteristic of many organised crime groups, as is their broad geographical reach. Most significant organised crime groups operating in Australia in 2008 were known to have an international dimension to their interests, although the level of direct involvement in transnational activities varies markedly between groups.

Governments—and Australia is no exception—will continue to face many challenges as organised crime groups expand their reach and spread. While the strategies and methods organised crime groups use to carry out serious crimes remain largely consistent, they may alter their approach in response to a threat from law enforcement to changing local or global circumstances or to a threat from a competitor.

The ability to quickly adapt is a key feature of the current criminal environment and presents a major and ongoing challenge for law enforcement agencies. Interestingly, organised crime groups use new technologies to advance their activities. Organised crime has consistently proven to be an early adapter of new technologies. While this presents challenges for law enforcement, new technologies can also present opportunities for law enforcement to penetrate criminal networks.

Not all serious crime is highly organised or undertaken by sophisticated criminal networks. Some people with no criminal background use their particular leverage, knowledge or contacts to commit crimes within their specialised fields. In particular, some elements of the financial service sector can be vulnerable to expert manipulation and other fraudulent actions. Important steps towards improving collaboration between a range of law enforcement, government and industry stakeholders have strengthened the overall response to the threat from organised crime, but addressing the fluid and evolving nature of organised crime will require continued effort and commitment across all sectors. In some areas alternative approaches, such as early prevention and intervention strategies, may be needed more. Increased community awareness is also often required.

The Australian Crime Commission has found that, while organised crime groups within Australia are diverse and flexible, high-threat organised crime groups have some consistent characteristics and strategies, contributing to their capabilities and success. Generally, high-threat organisation crime groups: have transnational connections; have proven capabilities and involvement in serious crime of high-harm levels, including illicit drugs, large-scale money laundering and financial crimes; have a broader geographical presence and will generally operate in two or more jurisdictions; operate in multiple crime markets; are engaged in financial crimes, such as fraud and money laundering; intermingle legitimate and criminal enterprises; are fluid, adaptable and able to adjust activities to new opportunities or respond to pressure from law enforcement or competitors; are able to withstand law enforcement interventions and rebuild quickly following disruption; are increasingly using new technologies; and use specialist advice and professional facilitators.

Successful organised crime groups have a presence across many sectors and crime types but are typically involved in some form of financial crime or money laundering. They will also have some connection with the illicit drug market. They are likely to be based offshore or connected to an offshore criminal group. They will have the ability to operate in several illicit markets and will move between criminal activities. You can get the idea of the extent and the impact of organised crime in this country from the overview by the Australian Crime Commission. Obviously making money, and in many instances converting that money to assets, is the key driving force behind organised crime.

Let us look more closely at this bill and what it aims to achieve. The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 implements legislative measures that form part of the national response to serious and organised crime agreed by the Standing Committee of Attorneys-General. The bill will strengthen criminal assets confiscation and insert unexplained wealth provisions. The unexplained wealth provisions will permit a court to confiscate a person’s wealth if the person is unable to demonstrate that the wealth was not derived from offences within the Commonwealth constitutional power. The bill will introduce model investigative powers for controlled operations, assumed identities and witness identity protection. These powers will enhance the ability of police to undertake undercover investigations and to target organised crime. The bill will facilitate greater use of telecommunications interception for criminal organisation offences. The bill will also target persons who engage in criminal activity as part of a group.

Controlled operations laws enable law enforcement operatives to be authorised to engage in conduct which may constitute an offence in order to investigate serious offences. The current controlled operations regime is set out in the Crimes Act 1914. The bill will replace a part of that act with the model cross-border controlled operation which was agreed to by the Standing Committee of Attorneys-General in 2004. It will also recognise controlled operations authorisations issued by states and territories to provide state and territory officers with protection from liability from Commonwealth offences. This will strengthen the ability of law enforcement agencies to conduct effective operations targeting organised crime.

Assumed identity laws enable the use of a false identity by an undercover operative engaged in investigating crimes, infiltrating organised crime groups and gathering intelligence. The bill will replace the current Commonwealth regime for assumed identities in the Crimes Act. The new regime will allow Commonwealth operatives to access state and territory identity documents to build a more robust assumed identity. This will assist operatives to infiltrate the more highly organised and sophisticated criminal groups. Importantly, implementation of the model laws will also provide for the mutual recognition of assumed identities acquired or used under a state or territory corresponding law.

Let us now also have a look at the witness identity protection element of this bill. The bill will replace the current witness identity protection scheme in a section of the Crimes Act with provisions consistent with national model legislation on witness identity protection. The intent of the model legislation is to harmonise, as closely as possible, witness identity protection schemes across Australia. The bill will create a mechanism for protecting the true identity of law enforcement officers, intelligence officers, foreign law enforcement officers or civilian witnesses who have lawfully obtained assumed identities or have been participants in controlled operations and are required to give evidence in legal proceedings.

Telecommunications interception plays a very important role in these changes. Part of the proposed national response to address organised crime involves the introduction of criminal organisation offences—for example, associating with a criminal organisation or instructing the commission of an offence for a criminal organisation. Some of these offences may carry a maximum penalty of five years imprisonment, which is below the seven-year imprisonment threshold for the use of telecommunications interception. The bill will amend the definition of ‘serious offence’ in the Telecommunications (Interception and Access) Act 1979 to facilitate greater access to telecommunications interception for criminal organisation offences.

This bill will also amend a part of the Criminal Code Act 1995 to include a new ground for extending criminal liability in relation to persons who jointly commit offences. This is consistent with the common law. The extension of criminal liability under the Criminal Code to cover joint commission of criminal offences will target persons who engage in criminal activity as part of a group. The provision will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by aggregating the conduct of offenders who operate together.

The measures governments take through their law enforcement and crime-fighting agencies will never be enough to completely rid society of organised and serious crime. Organised crime operates within and alongside legitimate business, making industry and the public potential sources of information about organised crime. Increased public awareness of the indicators of organised criminal activity may help to support prevention and reduction of such activity. Much fraud is rendered ineffective when the potential victim is able to recognise the signs of an attempted crime. Identity crime can be prevented through improvements to identity verification and public education. Awareness and understanding of the threats of organised criminal activity will continue to be a key component of the fight against organised crime in Australia.

There are also specialised strategies in place. Organised crime has the capability to resist law enforcement efforts. Law enforcement uses special tools including coercive powers, covert intelligence, surveillance and a range of specialised analytical and investigative techniques to overcome this resistance. Law enforcement responses will, by necessity, continue to be predominately reactive and directed toward issues affecting single jurisdictions. However, proactive and specialised law enforcement approaches are critical to the success of efforts to combat organised crime. This includes ongoing collaboration between state, territory and federal law enforcement agencies. There are current operations, investigations or task forces addressing amphetamines and other synthetic drugs, illicit firearms markets, high-risk crime groups, tax fraud and other financial crimes, outlaw motorcycle gangs, crime in the private security industry, and Indigenous violence and child abuse.

The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 aims to help our agencies better fight crime by making it harder for criminals to profit, as well as bringing the perpetrators of organised crime to justice. I commend the bill to the House.

7:39 pm

Photo of Greg HuntGreg Hunt (Flinders, Liberal Party, Shadow Minister for Climate Change, Environment and Water) Share this | | Hansard source

In addressing the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, let us start with the problem. The problem is that organised crime still exists on a grand scale within Australia. It takes the form of drugs, prostitution, standover work and illicit and illegal gambling. It is, in short, a blight and a cancer—an illness—upon our society. As a parliament which by world standards has had a remarkably unblemished record of corruption and engagement with criminal activity, we have a duty to ensure that the standards we set will help protect and preserve community life, economic life and public safety and order over the coming decade and generation.

I want to reflect briefly on the fact that of course there have been individual cases within the Australian parliament over the last century of improper activity, but we have a parliament of which we should be proud on both sides of this House. There is an almost unique level of probity which exists and resides in the Parliament of Australia. It is something of which we should be proud, it is something to which we should be committed and it is something which we must hand on to future generations. From the sanctity and strength of probity measures within this House we are thereby able to establish a platform and a base to reach out to broader society.

Because the nature of crime has moved from state based activity to national and international activity over the last three decades, we must focus on organised crime at the national and international levels. I strongly support the intention of the measures contained within this bill. The Crimes Legislation Amendment (Serious and Organised Crime Bill) 2009 essentially seeks to achieve four principal outcomes. Firstly, there is the strengthening of criminal asset confiscation and targeting of unexplained wealth, dealt with by provisions into which I will delve in more detail shortly. It is an important means of addressing hardcore criminal activity on an organised basis which seeks to avoid lawful detection. It is, as we have seen in Western Australia and the Northern Territory, an important tool. Secondly, there is the enhancement of police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection. Thirdly, the joint commission of criminal offences is addressed. Fourthly, greater access to telecommunications interception for criminal organisation offences is facilitated.

These are all desirable goals in the fight against organised crime and systemic corruption. They are, however, subject to two key factors, in my view. Firstly, when we set out additional powers there must be safeguards against abuse. We must be the guardians of the guardians. That is the lesson of history not just in Australia but throughout the world. There are numerous examples where significant powers can be misused by a very small number of individuals. That is not the practice or the history in Australia, although of course there are individual examples, but it is the temptation and therefore we must ensure that adequate safeguards are established. To that effect, in good faith, opposition senators in the Senate Standing Committee on Legal and Constitutional Affairs, which examined this bill, set out a series of concerns—firstly, in relation to an appropriate head of power for this law. We would like to see appropriate guarantees. Secondly, in relation to the trigger for an unexplained wealth order, we would like to see strong consideration either of the standard for the trigger or of the standard of proof once an investigation has been made and a charge has been brought. Thirdly, we have concerns in relation to the Australian Federal Police being empowered to apply for a restraining order under the unexplained wealth provisions. We would like to see that the orders may be required in circumstances of great urgency to prevent the dispersal of assets, and we would like this power of a restraining order to be readily available. It is less invasive than a general explained wealth order and more easily reversed. We think that this is an important tool. Fourthly, we have issues in relation to the disclosure of information, which have been set out by others in greater detail.

The general provision is strong support for the concepts contained within this legislation. The duty of this parliament is to ensure that the intent, force and capacity of the Australian Federal Police and of other agencies involved are in no way diminished by the safeguards we put in place. But it is very important that the democratic balance is struck so that the laws cannot be used by the very small number of people who may seek to abuse their position as guardians at some future time. I do not say this is inevitable, I do not say this is likely but I do say that always in giving power it must not be unfettered power; it must be power which is itself subject to review. That is our task, that is our role, that is our duty and that is our responsibility. We want to work in good faith with the government. We want to ensure that there are adequate safeguards and that this in turn will allow us to take clear steps forward to strike at the cancer of organised crime.

The other area on which I believe there is scope for amendment is in a very different direction. It is not directly in this bill but it is in relation to the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 in its mooted form. This is a personal view which I set out—it has not been adopted at this point by the coalition party room. I would like to see one of the penalties significantly strengthened. I would like to see the penalty which is set out in that bill for bribery of public officials strengthened from what I believe is 10 years to a 15-year maximum penalty—a tougher provision, a tougher sentencing arrangement where there is bribery of public officials as part of an organised crime syndicate or in the practice of organised crime. I believe that is something which is significant and which profoundly strikes at the reliability of our systems. I should like to see that these penalties are strengthened, both for those seeking to carry out the bribery and for those who are found guilty of accepting a bribe. I think on each side anybody engaged in bribery of public officials or any public official who receives a bribe should be subject to heavy penalties. That is related, it flows from the intent, it flows from the force, it flows from the direction of this legislation and in my personal view it would add to, enhance and strengthen that which is proposed here. It will put people on watch all around the country that this parliament is serious about brooking no breach of public accountability standards. However, this is not coalition policy; it is a personal view which I put forward for tougher penalties on bribery of public officials, whether it is those doing it as part of an organised crime process or those who succumb to the temptation of accepting a bribe.

The general intent of bringing forth legislation which is comparable to that in place in the Northern Territory and Western Australia for the use of unexplained wealth provisions to deal with organised crime—whether it is a traditional crime syndicate, a bikie syndicate or some other form of organised crime—is a very strong measure. I strongly, deeply and passionately support the general direction of the legislation. I commend Senator George Brandis and my very good friend the member for La Trobe, Jason Wood, for their commitment to this legislation and for ensuring that there is a balance of safeguards and toughness. It is responsible if we can ensure that there are safeguards. I want to see this legislation passed, I would like the government to take our advice in good faith. I say to my friend Jason Wood, who cannot speak this evening because of illness, that your work has been recognised. We will stand for, fight for and pursue the provisions which will give us the capacity to take on the organised crime that you faced as a member of the Victoria Police. We will ensure that the sort of thing which hurts mums and dads, shopkeepers, people who seek to live a peaceful life in good order is dealt with and that these organised crime syndicates are ultimately crushed.

For those reasons I support the intent of the legislation. I hope we can reach an accommodation with the government in the Senate. I believe that we will be able to do that and I would like to see us work together as a parliament to eradicate forever the prospect of organised crime or of any bribery of public officials.

7:50 pm

Photo of Sharon GriersonSharon Grierson (Newcastle, Australian Labor Party) Share this | | Hansard source

I rise to support the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. It has been estimated that, on average, organised crime costs the Australian economy $15 billion a year. That is a massive amount and it does not take much imagination to think of all the places this money could be better spent across our country. Organised crime is adaptable and sophisticated, and the associated risk carries significant consequences for businesses and for the Australian community. Only by putting in place strong laws to combat organised crime can we target the profits of criminal activity and remove the incentive for criminals to engage in organised criminal activity. I have already mentioned that a conservative estimate of the cost of organised crime to the Australian economy is $15 billion a year. This calculation was made as an extrapolation of current international estimates of the cost of organised crime applied to the Australian environment and, in part, on intelligence developed by the Australian Crime Commission. This is a cost that presents in many different ways: loss of legitimate business revenue, loss of taxation revenue, expenditure on law enforcement and regulatory efforts, and managing social harms when criminal activity compromises the health, safety and wellbeing of individuals and communities.

I make particular mention of the fact that the taxation commissioner and the Australian Taxation Office have been involved in the formation of this legislation and I want to praise the Rudd government for its pursuit of crime, particularly corporate crime and crimes such as this bill targets. I think there is now very healthy cooperation amongst regulators, agencies and departments and a much more strategic approach to data sharing and data matching. I do praise the work of the Taxation Commissioner and I was also relieved last Friday to hear him say in a public hearing in relation to taxation that some of the problems experienced in the ATO with staff members suspected of being involved with or inveigled by criminals is under control and being pursued rigorously.

That $15 billion that organised crime costs the economy is money that could have been spent on our health system, schools, nation-building infrastructure and the creation of jobs. Instead, it is money wasted, lining the pockets of a small number of very greedy individuals. The groups who are costing our country so much are well-planned enterprises that are systematically focused on one thing: making money. Much like a conventional business, you could say, until you take into account the illegal methods by which they go about accumulating their revenue. Their capabilities are formidable, as are their resources and of course their persistence and resilience. As reported in the 2009 Australian Crime Commission report Organised crime in Australia:

Organised crime groups continue to show a willingness to plan carefully, to adapt swiftly to changing law enforcement or regulatory responses and to be inventive in their search for new opportunities for profit. Some of the more enduring networks effectively adopt risk mitigation strategies to protect their illicit profits, where necessary behaving patiently to ensure the security of their logistics chains and to test law enforcement responses.

The willingness and capability to engage a broad geographic and demographic scope is a strong characteristic of these groups. We are talking about all levels of Australian society here, from illicit drug-runners to high-end corporate crime. For instance, money laundering and specialist financial advice is incredibly critical for organised criminal groups to succeed. Organised crime operates within and alongside legitimate business, making industry and the public potential sources, we hope, of information about organised crime, but also often unintended or innocent victims. Quoting again from the ACC report:

Financially skilled facilitators who knowingly or unwittingly help criminals retain and legitimise proceeds of crime, avoid taxation and other obligations relating to legally obtained income, will continue to be critical to successful criminal operations. Regulatory regimes managing the financial sector will become an increasingly important component in the prevention of organised crime.

I am pleased to say this bill is one of a suite of bills. It sits alongside the strengthening of many of our agencies and regulatory bodies—a consequence, too, of the global financial crisis that we can only see as a positive one.

Organised crime groups will engage with anybody and everybody, no matter their backgrounds, to maximise their power and their profit. For instance, the ACC found that outlaw motorcycle groups are using standover tactics to intimidate business rivals as they expand from drug trading to legitimate businesses and industries around Australia. Their involvement in outwardly legitimate business enterprises is potentially impacting adversely on a number of key market sectors in Australia, including the finance sector, transport, private security, entertainment, natural resources and construction. Police investigations have also discovered that outlaw motorcycle gangs have attacked businesses that have cooperated with police; forced a man to flee the country after he was involved in a confrontation with a bikie; invested heavily in natural resources, including Australian mining and Indonesian oil rigs; intimidated potential rival bidders at property auctions; and become major players in gun-running, tax fraud and money-laundering schemes. They have also planned to use frontmen to buy a legal brothel in Melbourne, infiltrated government departments to access confidential computer records and hidden a triple killer from police in Melbourne for 18 months. Put plainly, organised crime, like the example just listed, is the main contributor to our nation’s serious crime.

The organised crime groups that pose the most significant risk to Australia are transnational; have proven capabilities and involvement in serious crime; operate generally in two or more regions or states; operate in multiple crime markets; are engaged in the illicit drugs market, fraud and money laundering; intermingle legitimate and criminal enterprises; are fluid and adaptable; are able to employ a range of strategies to further their activities, including violence and corruption; withstand disruption; use new technologies; and use specialist advice and professional facilitators. I think that gives you some idea of just how difficult it is to combat and pursue organised crime. This bill, pursuing the proceeds of organised crime, we would hope will be a very effective deterrent.

After the outbreak of violence witnessed in the earlier part of this year focused around outlaw biker gangs, public sentiment and outrage demanded that greater action be taken in stemming the reach, influence and pervasiveness of these elements in our society. Seeing individuals act with no regard for law or decency, individuals who have become for all rights a law unto themselves, is not acceptable. That is why in April 2009 the Standing Committee of Attorneys-General, from across this country, agreed to a set of resolutions for a national response to organised crime. First and foremost, this was a shining example of the effectiveness of COAG in coming together to produce effective nationwide legislation in the interests of Australians—except, of course, the criminals. It is also a way to strengthen the arm of the agencies that are constantly engaged in detecting, deterring or stopping criminal activity. We would hope that this legislation does strengthen agencies such as the Federal Police and others.

In response to the shared threat posed by organised crime to all states and territories of Australia, this bill will implement the Commonwealth’s commitment as part of a national response to enhance its legislation to combat organised crime. It will strengthen criminal asset confiscation and target unexplained wealth. It will enhance police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection. It will address the joint commission of criminal offences and facilitate greater access to telecommunications interception for criminal organisation offences.

According to the Joint Committee on Australian Crime Commission report, the previous difficulties in defining organised crime groups made the anti-association laws very complex and therefore very hard to enforce. The committee also said the laws carried the risk of only netting relatively small-time players rather than senior figures. The committee was strongly of the view that in order to prevent serious and organised crime it was critical to remove or reduce the motivation for it—and, of course, that is money.

The committee made seven recommendations, including enhancing data collection. That was based closely on the Al Capone type measures taken in Britain that target individual criminals for tax evasion as well as forcing suspected criminals with extravagant lifestyles to explain how they came by their wealth, instead of prosecutors having to link their wealth to criminal acts. I again put on the record my support and encouragement of the ATO and the work they are doing with detecting high-wealth individuals who are evading tax. Any investigations certainly do need to look at whether criminal activity is involved.

This bill will also see assets confiscated from those suspected by the courts of obtaining an income through federal offences. The seizure of criminal proceeds is an incredibly effective way of disrupting the activities of these organised crime groups and hitting them where it actually hurts most. It could be said there is a concern that these new measures attempting to limit criminal activity may impinge on personal privacy and curtail civil rights. Of course, as is the norm for our Attorney-General, the bill does contain important safeguards. The proposed laws will be checked by the regulation of the Commonwealth Ombudsman. Any undercover operations will need special authority granted every three months. No operation will last more than 14 months without having to go through the whole process again. Police will not be allowed to engage in conduct that could cause serious injury, sexual offence or death.

It must be said that this bill is not about targeting and discriminating against particular groups and social circles in Australian society. It is about attacking the systemic foundations of organised crime and the individuals who profit from it, and it is about protecting ordinary Australians—working families, the average taxpayer, aged pensioners, single parents, youth—from the rogue elements of our society. As Australia’s new top cop, Australian Federal Police Commissioner Tony Negus, said upon being sworn in:

This is an enormous problem that we must fight together for our nation’s sake and for our children’s sake … attacking and recovering the proceeds of crime will play a key role in our future strategy.

For those reasons, I commend this bill to the House and praise the work of the Attorney-General in his pursuit of organised crime, reflected in this bill, and that of his staff and the advisers in his department.

8:02 pm

Photo of Mal WasherMal Washer (Moore, Liberal Party) Share this | | Hansard source

It is a pleasure to follow the member for Newcastle in speaking on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. The bill amends the Administrative Decisions (Judicial Review) Act 1977, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Australian Crime Commission Act 2002, the Crimes Act 1914, the Criminal Code Act 1995, the Customs Act 1901, the Law Enforcement Integrity Commissioner Act 2006, the Mutual Assistance in Criminal Matters Act 1987, the Proceeds of Crime Act 2002, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Witness Protection Act 1994. I commend the Attorney-General for achieving all of those great goals.

In April and August of this year, the Standing Committee of Attorneys-General agreed to a set of resolutions and arrangements for a comprehensive national response to combat organised crime. This bill implements legislative aspects of the national response that were not implemented by the Crimes Legislation Amendment (Serious and Organised Crime) Bill introduced in June of this year. The additional measures in this second bill strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity and target the proceeds of organised criminal groups. In general terms the bill aims to: strengthen criminal asset confiscation and anti-money laundering laws; enhance search and seizure powers and the ability of law enforcement to access data from electronic equipment; improve the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation; introduce new offences that would target persons involved in organised crime and facilitate greater access to telecommunications interception for the investigation of new serious and organised crime offences; improve the operation and accountability of the Australian Crime Commission; improve money laundering, bribery and drug importation offences; and make minor and consequential amendments to correct references to provisions dealing with the extension of criminal liability.

Although these aims are to be commended, there are some aspects of the bill that need to be considered closely. The purpose of schedule 4 is to insert four new offences targeting persons involved in serious and organised crime into the Criminal Code Act 1995. Specifically these new offences are: associating with a person engaged in criminal activity in a manner which may facilitate organised crime, providing material support to a criminal organisation, directing the activities of a criminal organisation and committing an offence for the benefit of or at the direction of a criminal organisation. The first three of these offences extend the traditional boundaries of liability to include alleged conduct which facilitates criminal activity at a broader level rather than conduct which is specifically linked to the commission or planning of an offence. This broadening of criminal liability would certainly enable law enforcement to prosecute those who play an important, if not direct, role in the commission of serious organised crime.

However, this benefit must be balanced with the fact that people may be exposed to sanction not because of their specific conduct but because of their associations with offenders or offences. The focus of criminal liability is shifted from a person’s conduct to their associations. Some people in our society have a greater choice than others about the extent to which they may interact with those that potentially engage in criminal activity. Although the defence provisions extend to immediate family relationships, relationships with cousins, aunties, uncles and so on are not covered. The Criminal Code does not currently extend criminal responsibility to include those that attempt to commit an offence; those that aid, abet, counsel or procure the commission of an offence; those that urge the commission of an offence; those that conspire with another to commit an offence; and those that procure conduct of another that would have constituted an offence. Also the code contains substantive offence provisions which criminalise conduct such as the possession, transfer or receipt of property or funds which either are the proceeds of an offence or are likely to be used as an instrument of an offence.

As outlined by the Law Council of Australia in its submission to the Senate Legal and Constitutional Affairs Committee, if these amendments can help law enforcement agencies where they have evidence that certain persons are engaged in conduct which is harmful to the community but they are unable to act as the law lacks a provision that prohibits such conduct, then they are to be commended. If, however, law is to be amended to assist where a suspicion of unlawful conduct exists but law enforcement is unable to act due to insufficient evidence to substantiate their suspicion, then it needs to be examined more closely, which is what the Senate Legal and Constitutional Affairs Legislation Committee is currently undertaking—and I look forward to their report being issued on the 16 November this year. Criminal asset confiscation is proposed to be strengthened through schedule 1 of the bill, which amends the Proceeds of Crimes Act 2002. The proposed amendments respond to recommendations of law enforcement agencies and to the 2006 Commonwealth Report on the independent review of the operation of the proceeds of Crime Act 2002, by Mr Tom Sherman AO. The amendments in schedule 1 will: make tests for exclusion and recovery of property fairer and more consistent including strengthening protections for third parties; improve the operation of examination provisions; increase the effectiveness of information gathering tools under the Proceeds of Crime Act; clarify the operation of orders ancillary to restraining orders; address technical recommendations with respect to the admission of evidence; ensure the correct calculation of pecuniary penalty orders; expand and clarify definitions used in the act; and make minor and technical amendments to the act, including to enhance the effectiveness of the Confiscated Assets Account. The overarching purpose of these amendments is to improve the operation of the Proceeds of Crime Act to ensure that it can be used effectively to deprive persons involved in organised crime of the financial benefits of their criminal activity.

Schedule 2 contains search related amendments that will target two main aspects of the search warrant provisions in the Crimes Act 1914. Firstly, the reforms will allow material seized under the act to be used by, and shared between, Commonwealth, state, territory and foreign law enforcement agencies This is necessary for the proper investigation of offences which cross jurisdictional boundaries. The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment to keep up with technological advancements. Essentially, it will make it easier for police to access and copy data from electronic equipment located at warrant premises. Currently police may operate electronic equipment found at a warrant premise if they believe on reasonable grounds that the data may constitute evidential material. The proposed amendments remove the requirement of believing on reasonable grounds, so essentially data can be accessed regardless of whether that material is suspected to be evidential material. It must be kept in mind that this may have far-reaching privacy implications as such data can include material held offsite at multiple locations where it can be accessed through the electronic equipment.

Schedule 3 proposes to amend the Witness Protection Act 1994 to improve the operation of the National Witness Protection Program. The program provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such a person. The amendments implement recommendations made in the 2003 Review of the national witness protection program and are informed by operational experience with the program. The amendments aim to: provide increased protection and security for witnesses and others included in the program, as well as officers involved in the operation; allow protection and assistance available under the program to be extended to former participants and other related persons where appropriate; and ensure that state and territory participants are afforded the same protection and have the same obligations as Commonwealth participants.

The purpose of part 1 of schedule 5 is to enhance the ability of law enforcement agencies to investigate and prosecute the money laundering offences within the Criminal Code. The amendments aim to address problems that have been identified by the Commonwealth Director of Public Prosecutions and the Australian Federal Police when investigating and prosecuting the money laundering offences under the code. Of particular note, the amendments extend the geographical jurisdiction of those offences and remove limitations on the scope of the offences to enable them to apply to the full extent of the Commonwealth’s constitutional power in this area.

The purpose of part 2 of schedule 5 is to address issues identified by AUSTRAC, the anti money laundering and counter-terrorism financing regulator, when taking enforcement action against reporting entities that do not comply with their obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Schedule 6 will make an urgent amendment to the Crimes Act to ensure that federal defendants in Victoria can continue to appeal a finding that they are unfit to plead This will address changes to Victorian legislation that will take effect from October 2009.

Schedule 7 will amend the Australian Crime Commission Act 2002 to improve the operation and accountability of the Australian Crime Commission, including by enhancing the commission’s powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular, independent review of the commission. This addresses the problem highlighted in the 2008 report of Mr Mark Trowell QC, where the lack of contempt power for dealing with uncooperative witnesses in examinations was a significant impediment to its capacity to combat serious and organised crime. These amendments provide the commission with the power to refer uncooperative witnesses to court to be dealt with for contempt.

Schedule 8 will substantially increase the penalties for the offences of bribing a foreign public official and bribery of a Commonwealth public official. The existing penalty for both offences is 10 years imprisonment. The courts can impose instead or in addition a pecuniary penalty which equates to a maximum of $66,000 for an individual and $330,000 for a body corporate. In 2006 the OECD, in reviewing the penalties in light of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, found that they were not effective, proportionate or dissuasive as required by the convention. The amendments will increase the penalty for bribing to 10 years, a fine of $1.1 million or both for an individual; and the penalty of a body corporate the greater of $11 million, three times the value of any benefit obtained that is reasonably attributable to the conduct or, if the benefit cannot be calculated, 10 per cent of the annual turnover of the body corporate during the 12 months ending at the end of the month in which the conduct occurred.

Schedule 9 will extend the definition of ‘import’ within the Criminal Code to include ‘dealing with a substance in connection with its importation’. The effect of this amendment is that the Commonwealth drug importation offences will capture a broader range of criminal activity. It is thought that organised crime costs Australia $15 billion every year. These crimes operate across international and state borders and employ high-tech equipment and technology. This bill contains a range of measures to enhance the law’s ability to prevent, investigate and prosecute such criminal activity and to target the proceeds from organised crime. In general I commend the bill; however, I am conscious of the pending Senate committee’s report and recommended amendments to be made in the Senate.

8:17 pm

Photo of Damian HaleDamian Hale (Solomon, Australian Labor Party) Share this | | Hansard source

It is with a great deal of pleasure that I rise tonight to voice my support for the Crimes Legislation Amendment (Serious and Organised Crime) bill (No. 2) 2009. This bill is yet another example of the government’s commitment to making Australia safer and to addressing the problems that we have with organised crime. The key elements of this bill will implement legislative aspects of the national response to organised crime that were not implemented by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. This bill will introduce additional measures to strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity and target the proceeds of organised criminal groups.

The bill will see practical reforms in six areas. The bill will introduce new offences that will target persons involved in organised crime and facilitate greater access to telecommunications interception for the investigation of new serious and organised crime offences. The bill will improve offences against money laundering, bribery and drug importation. The bill will enhance search and seizure powers and the ability of law enforcement to access data from electronic equipment. Importantly, the bill will strengthen criminal asset confiscation and anti-money-laundering laws. It will also improve the operation and accountability of the Australian Crime Commission. Lastly, the bill will improve the operation of the National Witness Protection Program, increasing protection for current and former participants and officers involved in its operation.

The ringleaders of organised crime syndicates often target very vulnerable people to assist them in criminal activities. The traffickers of drugs often use desperate people as mules and this bill will see improved prosecution of organised crime through new criminal organisation offences and enhanced money-laundering, bribery and drug importation offences. Like most Australians, the only exposure I have had to organised crime is what I have read in the newspapers or what I have seen on television. I am sure we have all seen TV shows such as Border Security and the like. I am not sure how close it was to the truth but the Underbelly series definitely exposed a side of Australia I never knew existed. As a father, an uncle and a friend to many teenagers, I often worry about younger kids who are exposed to the social scene of today where, unfortunately, drugs are available and organised crime is happening. This bill will help the agencies fighting this sad reality at the coalface.

A good friend of mine, Les Twentyman, whom you would know, Madam Deputy Speaker, who runs the charity the 20th Man in Melbourne, has often had to deal with the shattered lives of kids, many as a result of drug addiction. Sadly, I have heard today that in Gove in the Northern Territory a 19-year-old has passed away from a drug overdose in the last 24 hours. I visited Footscray with Les about 12 months ago and sat and spoke to three young heroin addicts in the Footscray mall and it showed me just how close to home this really is. At the time Les was working for another organisation and when we went into their facilities we saw a shrine up on the wall of all the people that had died of drug overdoses during Les’s time with this organisation. A lot of the photos just looked like family photos that all of us would have on the wall at home. There were a lot of young Asian students and a lot of people from different ethnic backgrounds, but there was certainly a good sprinkling, unfortunately, of Caucasian Australian kids, both female and male. It was just like walking into any house in Australia and seeing pictures on the wall. It really drove home to me as the father of five children the things that are going to confront them as they move on in their lives, where these drugs are coming from and how we as a society are going to combat them.

I think these types of laws will continue to be revisited, because it is really important that we continue to give the people who are making progress in regard to these crimes, in particular our drug and law enforcement agencies, the powers that let them do their jobs properly. So I do not think that this will be the last time that members get to speak on these types of laws. There is no doubt that the criminals will not sit back and just accept the changes to the law and the new laws that we want to introduce to make a safer society. They will certainly be working hard to tweak their business in order to make detection harder.

Serious and organised crime are involved in illegal business. There are bosses, middlemen and distributors, and they all profit from illegal activities, leaving a trail of carnage in their wake. This bill will provide stronger investigative and criminal asset confiscation powers to assist in the detection and disruption of organised crime activity.

Australian law enforcement agencies, in all jurisdictions, do a fantastic job. The Northern Territory, as has been mentioned in this debate, have introduced very strong laws in regard to the confiscation of assets that are unexplained wealth, if you like. As a press release from the Chief Minister reads:

The Territory Government continues to crack down on crime with the seizure and auction of a three-bedroom house bought from the proceeds of criminal activity.

The Chief Minister Paul Henderson said the three-bedroom two-storey Karama house—valued at more than $500,000—was seized under the Criminal Property Forfeiture Act last year.

“This sends a strong message—if you engage in criminal behaviour, we will hit you where it hurts and you’ll lose your house, your cars and your boat,” Mr Henderson said.

“The Territory Government’s tough on crime package continues to deliver real results with more than $13 million in cash and property seized since 2002.

“The 3-bedroom house was seized last year along with vehicles and other household property valued at $97,690 as part of a 3-year police investigation.

The resourcing of police is very important. Certainly, the new police station at Casuarina has been very well received by the police force. It is bigger, it allows for greater communication and it has better areas for detectives to do their work—all very important in combating organised crime. The press release from the NT Chief Minister continued:

“All the items seized were under the control of a 47-year-old unemployed male. All the assets were in the names of family members.

The laws up in the Northern Territory gave the police the ability to seize this property and to make sure that the person engaged in this activity did not benefit at all, nor did his family, from the illegal activities that he was engaged in. The press release continued:

The house is the fourth in Darwin to be seized and sold under the Criminal Property Forfeiture Act.

The vehicles, which include a ute, van and sedan, will be auctioned off at a later date.

Mr Henderson said the Territory Government is also strengthening its tough on crime package with last week’s introduction of the Serious Crime Control Bill aimed at cracking down on bikie gangs and other organised crime.

“The safety of the community is a top priority for this Government and we don’t want criminal gangs fleeing other states and coming here,” he said.

So they are really making a difference up there at the Northern Territory, with some of the laws that the Chief Minister and the legislative assembly have been passing in this area.

This bill will enhance Commonwealth search and seizure powers to enable the proper investigation of offences which cross jurisdictional boundaries and ensure that law enforcement agencies’ powers to access and search electronic equipment keep pace with technological advancements by enhancing their ability to access data from electronic equipment.

As the Prime Minister of Australia said in the first national security statement to the parliament in December last year, serious and organised crime, as an ever-present threat to the safety and prosperity of Australians and a challenge to the integrity of our institutions, is as important as any other security threat, with an estimated cost in excess of $10 billion per year. Crime is increasingly sophisticated and transnational.

This bill will help the members of our law enforcement agencies better fight serious and organised crime by making it harder for criminals to profit from their crimes, as well as bringing the perpetrators of organised crime to justice. I commend the bill to the House.

8:27 pm

Photo of Jason WoodJason Wood (La Trobe, Liberal Party, Shadow Parliamentary Secretary for Justice and Public Security) Share this | | Hansard source

I also rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. This bill aims to strengthen legislative controls to target organised criminal activity through the introduction of unexplained wealth provisions; enhancing police powers in relation to controlled operations, identity theft and witness protection; and increased access to telecommunications interception for criminal organisation offences. I believe the government is trying to do the right thing here and I congratulate the Attorney-General and his department.

In particular, I want to focus on the unexplained wealth provisions. Early this year I travelled with other members of the Joint Committee on the Australian Crime Commission on a delegation overseas and we got to see first-hand, when we met with the Italian authorities, how they brought down serious and organised crime simply by following the money trail. If you can imagine it, it is like a pyramid, and the higher you get up the pyramid the less you actually have your hands on the drugs or stolen goods et cetera.

One thing I am very concerned about is raising the threshold from ‘reasonable grounds to suspect’ to ‘reasonable grounds to believe’ before the DPP can actually bring the matter before a court. It is hard enough for police to get prosecutions against the most powerful organised crime figures in this country, and that is why I believe that the bar should not be lifted any higher for law enforcement agencies. As a former policeman and member of the organised crime squad obviously I have very strong feelings about this. I would hate to see people in this country go free who, as we heard previous speakers say, reap their profits from the deaths of young people who get involved with illegal drugs.

The way to target serious and organised crime is simply to go after the money. That was the message we heard loud and clear on our trip. Again, as a former police officer I know the police associations across Australia really support this legislation. Similar laws in the Northern Territory and Western Australia have been very effective in dealing with serious and organised crime.

Debate interrupted.