Wednesday, 19 August 2015
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; Second Reading
I thank those senators who have contributed to the debate on the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. This bill delivers on the government's continuing commitment to implement tough and effective measures to assist in the fight against crime. The measures in this bill will help make our streets, homes and communities safer. Fighting and preventing criminal activity is a key priority for this government since only safe communities can become safe, strong and prosperous.
I will now take the opportunity to address some of the key points raised during the debate. Firstly, I will deal with the matters raised by Senator Collins and Senator Wright in relation to schedules 5 and 6. They have indicated that they will move amendments in relation to the insertion of the provision of 'knowingly concerned' and in relation to mandatory minimum sentences. Firstly, schedule 5 of the bill would make it an offence to be knowingly concerned in the commission of a criminal offence. In its dissenting report to the Legal and Constitutional Affairs Committee, the opposition noted the importance of ensuring that the Commonwealth Director of Public Prosecutions has the powers it needs to conduct effective prosecutions. The 'knowingly concerned' measure is designed to achieve this very purpose.
The concept of 'knowingly concerned' was previously included in the Crimes Act but was not carried over to the Criminal Code when it was drafted in the 1990s. The bill will support our law enforcement agencies by ensuring that people who knowingly support and enable crimes like importation of illegal drugs, fraud and insider trading, are held responsible despite the fact that they were not the person taking delivery of the drug, handing over the money or forging the signature.
So why is this necessary? I particularly want to address your concerns, Senator Wright, when you stated that the government has failed to justify the introduction of 'knowingly concerned' as a form of secondary criminal liability. The introduction of 'knowingly concerned' is in direct response to the operational constraints identified during prosecutions since the introduction of the Criminal Code in 1995. These impediments have been noted by members of the judiciary—most notably, Justice Weinberg in Campbell against the Queen 2008. Knowingly concerned will apply in the same manner as existing forms of criminal liability contained in section 11.2 of the code. However, because a charge of knowingly concerned focuses solely on the facts and evidence of an accused's actions in relation to an office, it avoids some of the technicalities associated with establishing aid, abet, counsel and procure formulations.
These technicalities include the need to establish a relationship between the accused and a principal offender to prove that the accused jointly commissioned an offence with, conspired with, aided, abetted, counselled or procured the principal offender; prove that the conduct occurred at a particular point in time—that is, prior to the commission of the offence for counsel and procure, or during it for aid and abet; and/or adduce and rely upon evidence of co-offenders. For this reason, the concept may be clearer to investigators, lawyers, judges and juries. The reinsertion of 'knowingly concerned' will overcome the above difficulties, reduce the complexity of prosecutions and reduce the cost of federal criminal law enforcement. A further advantage is that the concept is flexible and adaptable to changing technology and offending methodology—both of which enable criminal offenders to involve themselves in crimes in ways that are increasingly disconnected from the immediate aspects of the offence.
In your contribution, Senator Wright, you provided examples of conduct which you claimed could be covered by the proposed insertion of 'knowingly concerned'. With respect, these demonstrate a fundamental misunderstanding about the concept. As the explanatory memorandum to the bill explains—and as the minister explained in his second reading speech in the other place—'knowingly concerned' is not intended to capture innocent associations with people who may turn out to be criminals. A person must have been intentionally involved in the commission of an offence to be guilty of being knowingly concerned in it. Mere knowledge or concern about the offence is insufficient. For example, a father who discovered that his son was involved in drug importation would not be considered to be knowingly concerned in that importation simply as a result of that knowledge. Senator Wright, you provided examples, including a family member who comforts a terminally ill patient who takes a suicide pill and the case of a journalist who goes undercover to investigate criminal activity. These instances would not be covered by the concept of knowingly concerned unless the person was intentionally involved in the commission of an offence.
Senator Wright, you also provided an example of an undercover police officer infiltrating a criminal organisation. There is a legislated regime in the Crimes Act which provides law enforcement with the ability to conduct covert undercover operations and provides protection from criminal responsibility for conduct engaged in the course of or for the purposes of the operations. Controlled operations are an important law enforcement tool, particularly in relation to the investigation of drug importation.
In her speech, Senator Collins stated that the government had failed to adequately consult stakeholders, including states and territories, about the introduction of 'knowingly concerned'. The key purpose of the bill is to improve the operation and effectiveness of Commonwealth criminal law and arrangements. In light of this, the bill was primarily informed by advice from operational law enforcement agencies. The Attorney-General's Department works with these agencies on an ongoing basis to monitor emerging crime trends, to assess the effectiveness of current arrangements and to identify and address operational gaps. The Attorney-General's Department also meets with stakeholders and relevant professional bodies where required. For example, on 12 March 2015 the department met with the Law Council of Australia to provide them with an overview of the bill, based on the measures that were included on the public list. This bill has been made available for public scrutiny through the parliamentary process, including through the public submission process conducted by the committee. The Commonwealth develops criminal offences with due consideration to constitutional divisions of responsibility between the Commonwealth and the states. Where appropriate, the Commonwealth consults state and territory governments on proposed reforms as appropriate through existing mechanisms such as Law, Crime and Community Safety Council meetings, associated officer-level forums and correspondence between justice ministers. However, the Commonwealth does not routinely consult states and territories on its criminal laws, just as states and territories do not consult the Commonwealth on their laws.
Both Senator Collins and Senator Wright have suggested that the 'knowingly concerned' measure is uncertain in its scope and application. The measure would be inserted into section 11.2 of the Criminal Code and would apply in the same manner as the existing forms of secondary criminal liability—namely measures which would make it illegal to aid, abet, counsel or procure an offence. In order to be guilty of being knowingly concerned in the commission of an offence, the person must have intentionally involved themselves in the commission of the offence. As I have stated earlier, 'knowingly concerned' is not intended to capture situations where a person innocently or unknowingly participates in a crime or associates with an offender. While 'knowingly concerned' has not been part of the Criminal Code in recent times, it has a significant history in federal legislation and currently forms part of the ACT's Criminal Code. This means that there is a large body of case law for prosecutors and the courts to draw upon when assessing new cases under this provision.
In your speech, Senator Wright, you stated that introducing the concept of 'knowingly concerned' may make it harder, not easier, to gather evidence and successfully prosecute those involved in criminal activity. However, as you would be aware, the Commonwealth Director of Public Prosecutions, Mr Robert Bromwich SC, advised the Senate Legal and Constitutional Affairs Legislation Committee that the absence of 'knowingly concerned' is a significant impediment to the effective investigation and prosecution of key individuals involved in serious criminal activity—particularly those who have organised their participation so as to be disconnected from the most immediate physical aspects of the offence.
Critics of this measure have also argued against it on the basis that the Model Criminal Law Officers Committee, which was established in the 1990s to develop a model criminal code for all jurisdictions, did not support it. The majority of jurisdictions have not adopted the model code or even enacted reforms to the principles of criminal responsibility that ministers agreed to over a decade ago. In addition, the extension of liability is generally more applicable to Commonwealth offences such as fraud and drug importation. Nevertheless, the Commonwealth has endeavoured to ensure that its criminal code is as consistent as possible with the model code. However, the committee's historical decision to omit 'knowingly concerned' from the model code should not prevent the government from making important reforms to matters within its jurisdiction where an operational need exists. In this case there is a clear indication from Commonwealth enforcement and prosecutorial agencies that, in practice at the Commonwealth level, the absence of a provision for 'knowingly concerned' is a deficiency.
I now turn to firearm trafficking in schedule 6. The bill will impose tough mandatory minimum penalties for firearm trafficking and the supply of firearms and firearm parts to the illicit market. These measures will ensure that the punishments for these serious offences are commensurate with the threat to Australian society posed by gun-related crime. 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. Regardless of the number of articles they have trafficked, it is necessary to put in place substantial penalties on all trafficking offenders with the aim of preventing even one more firearm from entering the illicit market.
Senator Wright is concerned that the discretion of the court would be removed by the imposition of mandatory minimum penalties. The government considers that the establishment of a mandatory minimum penalty is an appropriate deterrent and punishment for firearms trafficking. However, it also recognises and respects the importance of preserving a court's discretion in sentencing. The absence of a nonparole period will allow courts to take into account factors such as cognitive impairment, the public interest and the broader circumstances of the offence when setting the period offenders will spend in custody. Therefore, the actual time a person is incarcerated for will be entirely at the discretion of the sentencing judge and will not be disproportionate to an individual offence.
I now turn to some comments in relation to Senator Lazarus's proposed amendment. The government are happy to have a conversation about increased penalties, but we also need to think seriously about any policy implications. We believe that a mandatory minimum sentence of five years will act as a strong deterrent for those who would otherwise engage in illegal firearm trafficking. This policy has been thought through and formulated in conjunction with our state opposition. We believe that it is important to prevent these crimes. What we are offering is a preventive measure, not a cure. The government are open to any measures that will stop illegal guns at the border, but we need to think about the ramifications of quickly moving through an amendment without consulting with our law enforcement agencies, our prosecution agencies and the states and territories. We need to ask: will this amendment have a perverse effect? Will it result in more drawn out and expensive prosecutions where defendants are running to the most expensive senior counsel and will do all they can to avoid prosecution and a possible jail term of 20 years? Will more time be wasted in litigation appealing sentences? Will it mean, in fact, that fewer criminals end up being behind bars? How will these penalties for this offence affect sentencing in other criminal offences? These considerations are important, and we should consult on them through the Law, Crime and Community Safety Council and the Firearms and Weapons Policy Working Group.
The government committed at the last election to encourage states and territories to adopt higher and mandatory penalties to combat illegal gun possession. We should aim for consistency across Australia in the way we deal with illegal possession. Mandatory minimum sentences send a strong message to criminals: try to smuggle illegal guns and you will get caught. The government is prepared to have a conversation about increased penalties as well, but that conversation should involve proper consultation and consideration of its implications.
This bill makes a range of important amendments to combat serious criminal activity, to support our law-enforcement and prosecution agencies and to ensure that the Commonwealth criminal laws remain comprehensive and up to date.
In addition to the measures I have just discussed, the bill will improve the operation of the serious drug and precursor offences in the Criminal Code. These amendments will support the government's response to the growing problem of ice and the widespread devastation and destruction it causes. The amendments will improve our ability to bring to justice those who seek to profit from and propagate the trade in illicit drugs and will ensure that they face severe punishments for their crimes.
This government is committed to protecting the most vulnerable in our society. The bill will clearly demonstrate this commitment by increasing the penalties for forced marriage offences and by expanding the definition of 'forced marriage' in the Criminal Code. These amendments will assist authorities to protect potential victims and will punish offenders appropriately for this insidious crime.
The bill will also strengthen Australia's war crimes regime by simplifying and clarifying war crimes offences relating to violations of dignity of deceased persons in non-international conflict zones. These amendments support Australia's international obligations and reflect our strong commitment to hold those responsible for atrocities in conflict zones to account.
The bill will also enhance the offensive 'foreign bribery' to clarify that it is not necessary to prove that the accused intended to bribe a particular foreign official. This technical amendment reflects the government's commitment to stamping out foreign bribery and will strengthen Australia's compliance with international laws. The bill also contains a range of measures that reflect the government's ongoing commitment to supporting law enforcement agencies and providing them with effective and appropriate tools and powers.
In conclusion, the bill delivers on the government's continuing commitment to tackle crime and to make our communities safer. By providing our law enforcement agencies with the tools and powers they need to do their jobs and by ensuring Commonwealth laws are robust and effective, this bill reflects the government's unwavering efforts to target criminals and to reduce the heavy cost of crime for all Australians.
Question agreed to.
Bill read a second time.