David Shoebridge (NSW, Australian Greens) | Hansard source

The Australian Greens strongly support the implementation of tranche 2 of the anti-money-laundering reforms and the expansion of the scheme to financial services, real estate agents and lawyers. Having an effective anti-money-laundering scheme, we believe, is essential for the functioning of a democratic system and trust in decision-making.

In the course of the inquiry into the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 held by the Legal and Constitutional Affairs Legislation Committee, there were a number of issues identified with the bill. They were raised by stakeholders, and they raised very real concerns about how this legislation would work in practice. They included the fact that barristers were initially being roped in, despite the primary obligation lying with their instructing solicitors, even in circumstances where barristers across the country indicated that their practices did not have the resources or the capacity to comply with the proposed AML and CTF obligations.

There remain concerns with the scheme as to how lawyers can meet their competing obligations, their principle or primary duty being to the court, as well as meet their statutory obligations under this legislation. The Greens will be moving an amendment to seek to address that. Of course, there are also risks created by laws, if this is going to require reporting on financial transactions—which goes back to undemocratic regimes that can often, by changing their opinion on a person engaged in business, turn somebody from a business person to an enemy of the state. The concerns about potentially reporting to those non-democratic regimes under this scheme, remain real to the Greens. I come back to the fact that, on balance, the Greens support this legislation, particularly with the amendments that will be moved by the government.

I also want to recognise Fraser Brindley. I know I won't be the only Greens senator to do this. I want to recognise Fraser for his efforts in pushing for these laws, within the Greens and in the parliament, over many years. I had the immense good fortune of getting Fraser's advice from his experience and his passion for this law reform, when I was initially made the justice spokesman and the responsibility moved to the Attorney-General's. I know Fraser was working for years on this. He's not here to share this win, but from our side, from the Greens, we see this as Fraser's win. We want his family to know that. Thanks, Fraser.

I also want to note that in relation to this bill there has been a positive and constructive approach to the bill from the Attorney's office. These concerns that were raised in the course of the inquiry and which have been the subject of ongoing discussion with the Attorney's office, have, in significant part, been addressed but not entirely addressed. I want to also thank the many legal organisations who've engaged with our office and engaged in the inquiry. This was a proper inquiry, where we had time to consider the evidence and then, having considered the evidence, had the chance to put forward considered amendments. I note that there is a whole series of legislation that has not had that benefit.

I want to thank the law societies in the various states and the Law Council. I want to thank the bar associations for their engagement. As I indicated in the inquiry, and indicate in this debate, as a member of the New South Wales Bar Association, I also want to acknowledge the work of the New South Wales Bar Association in bringing forward a constructive approach to this bill.

I know that amendments that will be moved to this bill today make a number of changes in how this legislation will work. One of the most important is actually carving out barristers from the reporting and due diligence obligations under the AML and CTF, where they are instructed by a solicitor. As the profession pointed out—to a person—where the obligation on reporting and due diligence is already being undertaken by an instructing solicitor, there is no utility to have that also replicated by a barrister who has been instructed through that firm of solicitors. It is just additional expense and red tape. When you look at the nature of a barrister's practice, requiring the quite onerous due diligence and reporting obligations to be mirrored by both the barrister and the instructing solicitor is contrary to the interests of justice. I am grateful that the Attorney has reviewed the evidence from the inquiry and considered the representations put almost to a person by the legal profession. We will be supporting those amendments that make it clear that, where a barrister has received instructions from a solicitor and that solicitor is covered by the scheme, we won't have pointless, unnecessary and damaging double reporting by the barrister as well.

I will also be moving, on behalf of the Greens, a further amendment to this bill, which seeks to address the circumstances where a lawyer's duty to the court comes into conflict with their statutory obligations under this bill. We had multiple submissions about this in the course of the inquiry. I'll briefly set out the circumstances where that conflict could occur. For example, it may be well into a trial—two or three weeks or multiple days into a trial. There may be subpoenaed evidence that comes in. There may be further instructions that are obtained which may raise concerns about whether or not the solicitor needs to make reporting under the scheme. The reporting under the scheme is confidential, and it's an offence to tell anybody that a report has been made, let alone the nature of the report. The legal profession were united in their position that, once a solicitor or a barrister formed the view that they needed to report their client under this scheme, that created an immediate conflict of interest with their client. Even if they couldn't tell their client that it had happened and even if they couldn't tell the court that it had happened, the conflict would be there, and there would be an ethical obligation on those lawyers to end their instructions because of that conflict.

The question is: if you're two weeks into a three-month trial, what on earth does an instructing solicitor or a barrister tell the court in those circumstances? It's a crime to inform the court that you've made the report and to disclose the nature of the report. It's an offence to tip your client off. So what on earth does a solicitor or a barrister do in those circumstances? There has been no credible answer given to us about that by the Attorney, despite requests. Indeed, the response we've got from the Attorney's office is that no such conflict exists. On the one hand the Attorney is saying that, and on the other hand the entire legal profession is saying the opposite. In those circumstances, we have proposed an amendment that would seek to address that conflict. We're grateful for the assistance of the profession in drafting that. I particularly want to note the engagement of the New South Wales Bar Association, again, in drafting that amendment—my office takes responsibility for the amendment entirely—and in helping us put forward an amendment which we think gets a balance in that. We do not want to undermine the reporting requirements, but we are deeply troubled that that overriding duty to the court might be lost and deeply troubled by the circumstances that would put lawyers in, if this bill were passed unamended.

I also want to note that, whilst we're debating this bill—and we have time to debate this bill—there are a bunch of bills we don't have time to debate, which are going to be guillotined this afternoon. One of those I want to raise is the privacy bill that will be coming. Again, I want to note that the Attorney's office has engaged with us on this bill and that some of the issues that we raised in relation to the potential breadth of the doxxing offence have been addressed in an amended explanatory memorandum. I'm pleased the government will also, following negotiations with the Greens, insert a two-year independent review of the doxxing clauses. There is very real concern on their face the doxxing provisions may silence legitimate political commentary. This review and the additions and the amendments in the explanatory memorandum will go some way to do that.

The Greens will also be moving amendments to address some of the most glaring oversights in what's called the tranche 1 privacy bill. The Greens' amendments will endeavour to update the definition of 'personal information' so that it's in the 21st century and includes things like 'IP addresses' and 'data tracking', which are essential for any modern privacy laws. We will move to have the consent provisions mirror those that the government puts forward in the social media ban, which will be real, effective, modern consent provisions. If they're good enough for the social media ban bill, we ask the government, 'Why wouldn't we include them as the standard in the privacy law?' We will also move amendments to introduce a fair and reasonable requirement on the treatment and the holding of data from those who take personal information.

Finally, I want to say this on the privacy bill. Once the bill is law, I want to be clear that the Greens and every informed stakeholder in this space expect to hear from the Attorney a firm timetable for when tranche 2 and the balance of privacy law reform is coming. Change is desperately needed. We've seen that in repeated data breaches and privacy breaches that keep happening to ordinary Australians while this government refuses to act. Every delay sees more online tracking and more data scraping and other exploitative practices continue.

In the course of the inquiry on the privacy bill, one of the most glaring responses we had was this candid response from the department. And I don't criticise them for their candidness and for telling us straight what was happening. When we asked the department why tranche 1 of the privacy reforms had almost zero effective content to improve our privacy laws and why it did everything but bring our privacy laws into the 21st century, the response we got from the department was that it was the government's intention that nothing in the tranche 1 of privacy reforms have a material impact on a regulated entity. That's bureaucratic code for not wanting to change the substantive privacy laws despite the calls from across society to do exactly that.

We need to change our substantive privacy laws. We need to have privacy laws that at least look like they've been written in the 21st century, not in the 20th century. We need to protect kids' data. We need to stop being tracked without our consent. We need to stop our data being weaponised and commercialised against us. We need our consent to be real and informed. And we look forward to the Attorney making it clear when that will happen.