Wednesday, 19 August 2015
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; Second Reading
It gives me great pleasure to speak on the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. The coalition government made a commitment to ensuring a safe and secure Australia because security is the highest priority of any government. This bill delivers on the coalition government's commitment to tackle crime and make our communities safer. By providing our law enforcement agencies with the tools and powers they need to do their job, and by ensuring Commonwealth laws are robust and effective, this bill reflects this coalition government's efforts to target criminals and reduce the heavy cost of crime for all Australians.
This bill contains a range of measures across various Commonwealth Acts. These include measures to: implement tough penalties for gun-related crime; increase the operation and effectiveness of serious drug and precursor offences; increase penalties for forced marriage offences; ensure our criminal offence regimes are robust and effective; and ensure efficient arrangements for administering criminal law and related provisions.
In this way, the coalition government is delivering on our commitment to tackle crime and keep our community safe. There are a number of schedules in this bill. I would like to focus on three in particular that I think are very important for Australia and for Queensland. Schedule 1, in relation to serious drug offences, improves the operation and effectiveness of the serious drug and precursor offences in part 9.1 of the Criminal Code Act 1995—the Criminal Code. These new laws make two key changes to Commonwealth drug and precursor offences so that it is easier to successfully prosecute individuals who are knowingly engaged in large-scale drug and precursor importations. First, the laws will ensure that it is simpler to prosecute individuals who evade punishment because they manage their involvement in a drug operation in such a way that the prosecution cannot prove they have the relevant level of knowledge. Secondly, the changes will simplify the offences for importing the chemicals used to manufacture illicit drugs.
In relation to the first point—making it easier to prosecute individuals for attempted drug offences—this change will ensure that the same burden of proof applies to cases involving an attempted drug offence and to cases where an accused actually committed the offence. Under this change, where a person attempts to commit a serious drug or precursor offence, the prosecution will only need to prove that the person knew there was a risk that the substance involved was an illicit drug. This will make it simpler to prosecute individuals who are part of a larger drug enterprise but who deliberately ignore obvious signs about how their actions fit into the broader scheme.
This amendment is particularly important where a controlled operation is used as part of the drug investigation. In controlled operations law enforcement agencies may substitute an illicit drug with an inert substance. This helps to protect the community, but it means that those involved can only be charged with attempted offences. In one case the police conducted a controlled operation to replace 80 kilograms of ice that was imported into Australia with an inert substance. The accused received the consignment and was subsequently charged with an attempt to import a border controlled drug. However, at trial the accused successfully exploited the greater onus of proof on the prosecution in attempt cases. The defendant argued that, while he knew he was importing something illegal, he believed that he was helping to import counterfeit money and cheating cards for use in casinos, not drugs. The defendant denied he knew that the consignment contained drugs or that he intended to import drugs and therefore could not be found guilty of an attempted importation offence. Had the controlled operation not occurred the prosecution would only have to prove that the accused was recklessly indifferent to the risk that the consignment contained illicit drugs. As this example demonstrates, legitimate actions of a law enforcement agency to reduce the potential harm from a drug importation should not make it more difficult to prosecute the people involved in the offence.
The second change in relation to the first schedule deals with importing precursor chemicals, which organised criminal gangs use in the production of illicit drugs like ice. Under the amendments, the prosecution will no longer have to prove that the importer intended to use these chemicals to produce illicit drugs or pass them on to a drug manufacturer for that purpose. It will be enough that the person imported a precursor without the appropriate authorisations. This change is intended to make sure our laws keep pace with the methodologies of drug traffickers. It will assist in prosecutions of persons involved in the importation of precursors but who deliberately avoid knowing their place in the larger criminal operation.
In one case, a drug syndicate arranged the importation of a large quantity of precursors into Australia. At trial the defence successfully argued that the accused was merely a middleman who only had responsibility for collecting the consignment and passing the chemicals on to someone else. The prosecution could not prove that the accused knew or believed that another person would use the precursor to manufacture a controlled drug. This extra element—the intent to manufacture—would have significantly improved the prosecutions chances of convicting the accused in this case. This change will not affect people who bring these chemicals into Australia with appropriate authorisations. These authorisations exist specifically to minimise the risk that precursors can be diverted into drug manufacture.
The next schedule that I wish to focus upon is in relation to forced marriage. This will expand the definition of forced marriage in the Criminal Code to include circumstances in which a victim does not freely and fully consent, because he or she is incapable of understanding the nature of a marriage ceremony. It will increase the penalties for the forced marriage offences in the criminal code to ensure they are commensurate with the most serious slavery related facilitation offences.
The coalition government is strongly against forced marriages. The effect of bringing these amendments in the parliament today will clarify what constitutes forced marriage and will increase penalties for conduct that causes a person to enter into a forced marriage. As a consequence of the amendments a child under the age of 16 is presumed incapable of consenting to marriage. Any person who engages in conduct that causes a person who does not understand the marriage ceremony to enter a marriage, such as through arranging or officiating over the marriage of a child, may be committing an offence.
In addition, these changes, if successful, will increase the penalty for engaging in conduct to cause another person to enter into a forced marriage. The penalty for an aggravated forced marriage offence will be increased from a maximum of seven years imprisonment to a maximum of nine years imprisonment. The forced marriage offences are aggravated if the victim is under 18. The coalition government will also increase the maximum penalty for non-aggravated forced marriage offences from the existing four years to seven years imprisonment.
The criminalisation of forced marriage in Australia in 2013 signalled that forced marriage is never acceptable in our country. However, the criminal law must be supported by community measures to detect and prevent forced marriage. Forced marriage can be prevented, and with the right tools we can empower young men and young women to protect themselves and their friends and get help when needed. The government is also doing broader work to prevent forced marriage. The government has taken many steps to address and educate on the issue of forced marriage so it can be eradicated. The government has provided funding of over $485,000 over four years to prevent and address forced marriage by providing ongoing education. The government has launched the Forced Marriage Community Pack, which provides information and resources on forced marriage, and it has maintained the operation of specialised teams within the Australian Federal Police to investigate forced marriage.
And the government will take the further additional action of hosting a series of forced marriage workshops in each capital city throughout 2015. As part of the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015-19, the Attorney-General's Department has hosted these tailored workshops, which raise awareness of forced marriage amongst front-line officers and service providers in relevant government agencies, non-government organisations and civil society who are likely to come into contact with people in, or at risk of, a forced marriage.
The other schedule that I would like to focus on today is in relation to penalties for firearm-trafficking offences. This is quite important. The bill introduces mandatory minimum sentences of five years imprisonment for the offences of illegal importation of firearms and firearms parts into Australia and illegally moving firearms and firearms parts across borders within Australia. Mandatory minimum penalties send a strong message on the seriousness of gun-related crime and violence and act as a deterrent for criminals. The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the threat posed by the illicit market, and, due to the enduring nature of firearms, a firearm can remain within that market for many years. Mandatory sentences will not apply to children and there is no minimum non-parole period. The offences preserve a level of judicial discretion to allow courts to take into account mitigating factors when setting the period offenders spend in custody. In the lead-up to the 2013 election, the coalition undertook to implement tougher penalties for gun-related crime. We are following through on that promise. The introduction of this penalty is appropriate to ensure that high-culpability offenders receive sentences proportionate to the seriousness of their offending, while providing the courts with discretion to set custodial periods consistent with the particular circumstances of the offender and the offence.
They were the three schedules that I wished to focus on, but there are numerous other schedules in this bill. Schedule 5, for example, inserts into section 11.2 of the Criminal Code the concept of being 'knowingly concerned' in the commission of an offence as an additional form of secondary criminal liability.
Schedule 7 will rectify administrative inefficiencies, address certain legislative anomalies and clarify provisions in part 1B of the Crimes Act, relating to federal offenders.
Schedule 8, in relation to transfer of prisoners, will allow the interstate transfer of federal prisoners to occur at a location other than a prison.
Schedule 9 relates to the sharing of information relevant to federal offenders. It will facilitate information-sharing about federal offenders between the Attorney-General's Department and relevant third-party agencies.
Schedule 10 will amend the Anti-Money Laundering and Counter-Terrorism Financing Act to clarify and address enforceability issues and operational constraints identified by the Australian Transaction Reports and Analysis Centre, more commonly known as AUSTRAC.
Schedule 11 will allow the Integrity Commissioner to perform his or her functions more efficiently and effectively while improving the general operation of the Law Enforcement Integrity Commissioner Act 2006.
Schedule 12 will amend the Australian Crime Commission Act 2002 to improve the efficiency and effectiveness of Australian Crime Commission special operations and investigations.
Schedules 13 and 14 will amend the Proceeds of Crime Act to increase penalties for failing to comply with a production order or with a notice to a financial institution in a proceeds-of-crime investigation. Additionally, it will amend the Proceeds of Crime Act to address ambiguity in the provisions, streamline the appointment of proceeds-of-crime examiners and support the administration of confiscated assets by the Official Trustee.
Schedule 15 concerns state law enforcement agencies. This bill will give the Independent Commissioner Against Corruption of South Australia, whose office became operational in September 2013, the ability to access information from Commonwealth agencies consistently with other state anticorruption bodies. It will extend defences for certain Commonwealth telecommunications offences and give ICAC SA the ability to apply for certain types of search warrants. It will also update references to reflect the new name and titles associated with the Queensland Crime and Corruption Commission consequential to the Crime and Misconduct Commission Amendment Act 2014, Queensland, coming into force last year.
In relation to schedule 16 concerning controlled operations, the bill clarifies when a variation to a controlled operation would require deputy commissioner or commissioner approval, and clarifies that an authority for a controlled operation must not be varied if it would alter the criminal offences to which the controlled operation relates.
Schedule 17 concerns technical corrections that will amend two paragraphs in the Classification (Publications, Films and Computer Games) Act 1995 for consistency with current Commonwealth drafting practices and to correct an amendment to the act made by the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014.
It is also important to touch on the views of the Senate Legal and Constitutional Affairs Legislation Committee, which is chaired by my Queensland colleague Senator Ian Macdonald, in its report on the bill that was tabled on 16 June 2015. The majority of the committee did not recommend any changes to the bill, but paragraph 2.74 of the report states:
The committee is grateful for the number of detailed submissions it received, noting the length and complexity of the Bill. It has considered the concerns raised by submitters, particularly relating to Schedules 1, 5 and 6 of the Bill. While the committee understands that some of these provisions may have some impact on an individual's freedoms and liberties, the committee acknowledges that the government's first priority is to keep our nation safe. Recent events, such the Martin Place siege, have deeply affected the community and demonstrate that stronger laws to protect the community are needed.
Paragraph 2.75 of the report further states:
The committee also notes the findings of the Australian Crime Commission in its Organised Crime in Australia 2015 report which demonstrate that 'organised criminal gangs represent an ongoing threat to this country' and are relying on new technologies to escape prosecution. The law must keep pace with modern technology and the way in which criminals operate. The committee notes that the majority of provisions contained in the Bill have been drafted at the request of the CDPP. The committee agrees that the passage of the Bill would remove impediments currently faced by the CDPP when prosecuting offenders for serious crimes. The proposed amendments would ensure that offenders are no longer being charged with offences that do not reflect their true level of criminality. The committee is of the view that overall both the minister and the department have provided sufficient justification for these measures. The committee therefore recommends that the Bill be passed.
The committee did recommend that the Commonwealth and state and territory governments consider reviewing underage sex offences to ensure there is consistency with the federal offences of forced marriage. This bill delivers on the coalition's promise to deliver a stronger, safer and more secure Australia.