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

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

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

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

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

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

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

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

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

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

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

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

Janelle Saffin (Page, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I want to put on the record a few comments about what it will do and I want to raise a couple of questions. Organised crime costs Australia approximately $15 billion per year. The Attorney-General has made that statement in this House on a few occasions, including in his second reading speech on this bill. That is a lot of wasted money and I know there would be more than that, because it is not easily quantified when you are dealing with organised crime. I would say that would be a conservative amount of money we are talking about. I would be really interested in seeing the methodology applied to the quantification of this but I know it would be extremely difficult. Can you imagine what services we could deliver to the community if we had that $15 billion?

I know that no jurisdiction will ever be free of organised crime and it would be unrealistic to think that, although it would be good. But we, the lawmakers, have a responsibility to take whatever preventative action we can, both to prevent it and to make it harder to do. Sometimes, that is where action has to be directed. We will not always be able to prevent it but we have to make it a lot harder. We also need to be able to punish it. We have a responsibility to try and stay one step ahead, and therein lies the challenge. When we are introducing laws and enhancing laws and increasing penalties and increasing the powers of our law enforcers, who do quite a good job in this area, we also have to be mindful of our liberties—that is, yours, mine and the community’s. We need to try and always be mindful of calibrating our responses accordingly and getting that balance. Therein lies the biggest challenge for us as lawmakers in this place, but that responsibility falls heavily on the Attorney-General.

One of the threats we face from organised crime is people trafficking. That would have to be one of the most odious, obscene crimes that exist. How you can traffic in people is beyond me. Other threats are the importation of narcotics, community violence and identity crime. We have been reading a lot about identity crime lately. It is rather alarming to think that people can have their identity stolen, and there have been situations where they have really had to struggle to get it back, so to speak. It is just unbelievable. Money laundering and labour exploitation are also really big.

The Standing Committee of Attorneys-General, SCAG, agreed to measures to support a national response. SCAG did this at its meetings in April and August this year. This bill and other legislative measures reflect the high level of cooperation among the attorneys-general, and it is a demonstration of their desire—that is, the governments of all levels represented there—to effect a coordinated effort to combat organised crime. I see that the Attorney-General has just joined us here in the chamber. He has done a lot of work in this area, with the Standing Committee of Attorneys-General, to get the bill that we have before the House today.

The legislative measures contained therein broadly cover three key areas. They are the enhancement of criminal offences, including penalties; the enhancement of criminal asset confiscation; and the enhancement of police powers, where it is deemed necessary in this area. Importantly, it targets unexplained wealth. Unexplained wealth, of itself, does not mean it is the proceeds of organised crime, but it is one of the indicators. Unexplained wealth is a situation that has no place in modern society.

Organised crime is something that exists. It exists in our Asia-Pacific region. It exists internationally, but it certainly exists in the Asia-Pacific region. A lot of it exists underground but it also exists above ground. Organised crime networks use the tools and mechanisms of legitimacy to try and legitimise, to track, what they do. They try to use businesses and banks and all of the other mechanisms that we use. The internet also has become a powerful tool for a lot of things, including organised crime.

The overview of the bill is that implementing legislative agreements of the national response will have the following effects: it will introduce new criminal organisation and association offences; it will enhance the law enforcement capacity vis-a-vis the money-laundering, bribery and drug importation offences; and it will increase penalties for bribing a foreign official and a Commonwealth public official. It is important to increase the penalties but that has to work side by side with other mechanisms of law enforcement. The legislative agreements will allow seized materials to be shared among Commonwealth, state, territory and foreign law enforcement agencies—the latter, I would imagine, with the appropriate protocols in place. It strengthens the Commonwealth confiscation regime regarding criminal assets and it will improve the National Witness Protection Program, which is really important. It will do that by amending the Witness Protection Act 1994. As we know, that act provides protection and assistance to people who are assessed as being in danger because they have agreed to give evidence or a statement that can be used in criminal and certain other proceedings, because of their relationship to such a person.

The amendment will provide increased protection and security for witnesses and others included in the program—I take ‘others’ to be associates and members of that person’s family—as well as officers involved in the operation. It is important that people caught within the ambit of the program are given protection. It will allow protection and assistance available under the National Witness Protection Program to be extended to former participants and other related persons where appropriate. Importantly, it will also ensure that state and territory participants are afforded the same protection and have the same obligations as Commonwealth participants. I cannot go into detail here, but I recently had a situation where somebody sought my assistance in that area. It was not without its problems—let’s put it that way. I will leave that there. Anything that can enhance that protection I both applaud and support. And you can imagine that working across the jurisdictions makes it even more fraught.

Turning to the new criminal organisation and association offences, these are new offences that target persons involved in serious and organised crime. This measure affects the Criminal Code Act 1995. These amendments implement the resolutions agreed to by SCAG on the dates that I mentioned earlier. They also introduce new offences that criminalise associating with persons involved in organised criminal activity as well as those who support or commit crimes for or direct the activities of a criminal organisation. These amendments also facilitate greater access to telecommunications interception powers for the investigation of the new offences. I know there are appropriate controls in place around that for law enforcement agencies to be able to do what they need to do but equally for the liberties of the community at large.

Regarding the money-laundering and bribery and drug importation offences, the bill enhances—that means strengthens—the ability of law enforcement agencies to investigate and prosecute money-laundering offences. This relates to Criminal Code division 400. These amendments are intended to address problems that were previously identified by the Australian Federal Police. In particular, it extends the geographical jurisdiction of those offences. It also removes 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. It also increases the penalties for bribing a foreign public official—again, this amends the Criminal Code; I alluded to this earlier—and the bribery of a Commonwealth public official. It can be challenging. Foreign public officials can sometimes come under great pressure in this area, but the increased penalties should make them think twice about being involved in such activities.

Further, the bill extends the definition of ‘import’ so that it includes dealing with a substance in connection with its importation. That will affect division 91 of the Criminal Code, relating to serious drug offences. That amendment ensures that the Commonwealth drug importation offences cover the full range of criminal conduct covered by the previous drug importation offences in the Customs Act 1901. The aim is to put it beyond doubt in that area.

Regarding the search related amendments, the bill allows material seized under the search and document production powers in the Crimes Act 1914 to be used by and shared between Commonwealth, state and territory law enforcement agencies. We are advised that this is necessary for the proper investigation of offences which cross jurisdictional boundaries. That just makes sense because organised crime does not stop at the border—it does not stop when I go over the Queensland border, where I live. I am getting into your territory, Mr Deputy Speaker Scott! It makes sense that seized material should be able to be treated that way. It introduces portability, if you like.

Regarding criminal assets confiscation and anti-money-laundering provisions, the bill amends the Proceeds of Crime Act 2002 to strengthen the whole Commonwealth criminal assets confiscation regime. This was deemed necessary. These amendments are in response to the recommendations of law enforcement agencies. Also, in 2002 an independent review of the operation of the Proceeds of Crimes Act was done by Mr Tom Sherman AO, who is well known in this place. The report of that review was tabled in parliament in October 2006.

The amendments will do a number of things. They will expand and clarify the definitions used in the act. They will ensure the correct calculation of pecuniary penalty orders. They will address technical recommendations on the admission of evidence in this area. They will clarify the operation of orders ancillary to restraining orders in this area. They will increase the effectiveness of information-gathering tools under the Proceeds of Crime Act, improve the operation of examination provisions and make tests for exclusion and recovery of property fairer and more consistent, including by strengthening protections for third parties. I discussed with the Attorney-General the ability to have the act as strong as is necessary but also fair, particularly strengthening the protections for third parties, which is an important provision that is included.

The bill also addresses some issues identified by AUSTRAC, which is our anti-money laundering and counterterrorism financing regulator, for when it takes enforcement action against reporting entities that do not comply with their obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The Anti-Money Laundering and Counter-Terrorism Financing Act is a domestic act but it arises out of one of the 13 international terrorism conventions that we have an obligation to respond to as a result of Security Council resolutions. The act, being consistent with that convention, is an important part of our response nationally and also regionally internationally to terrorism in this area.

The bill amends the act of 2002 to enhance the Australian Crime Commission’s powers to deal with uncooperative witnesses—and I imagine that in this regard there might be a few. It also reinstates procedural requirements for issuing summonses and notices to produce and requires regular independent review of the ACC. That is an important provision because on one hand we are giving wide-ranging powers—which are deemed necessary by the Attorney-General and by SCAG, the Standing Committee of Attorneys-General—but on the other hand it is important that there is some independent review of the exercise of those powers. That is just part and parcel of the rule of law society that we live in. I feel quite satisfied that that provision is in there.

Another important provision is that the bill makes what I am told is an urgent amendment that is required to the Crimes Act to ensure that federal defendants in Victoria can continue to appeal a finding that they are unfit to plead. This addresses Victorian legislation to take effect from October 2009. This was one area that I had discussions with the Attorney-General about, and I know that it was necessary to have that included in the bill.

In closing, I am happy to have spoken in support of this bill. It is important that we continue to do what we can to tackle organised crime. It is a blight on our society. It is a huge cost, and that $15 billion—which is a conservative estimate—that it costs each year is something that we cannot afford to treat lightly. I thank the Attorney-General for the detailed discussions that we were able to have on this bill and for taking on board some of the comments and feedback.

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

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

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

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

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

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

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

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

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

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

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

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.