Nick Sherry (Tasmania, Australian Labor Party, Assistant Treasurer) Share this | Link to this | Hansard source

I table revised explanatory memoranda relating to the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Appropriation (Water Entitlements and Home Insulation) Bill 2009-2010

The Appropriation (Water Entitlements and Home Insulation) Bill 2009–2010 provides urgent funding to cover rebate payments made under the Home Insulation Program and departmental costs associated with the acceleration of the water buy backs within the Murray-Darling Basin system that are addressed in a further Bill to be introduced shortly.

The measures provided for in this Bill allow administered funding of $695.8 million for the Home Insulation Program to be brought forward (from 2010-11) and departmental funds of $4.9 million to be brought forward ($4.4 million from 2013-14 and $0.5 million from 2014-15) from the Water for the Future – Restoring the Balance in the Murray-Darling Basin program.

The $695.8 million for the Home Insulation Program is part of the $985.8 million bring forward of funding included in the Mid-Year Economic and Fiscal Outlook 2009-10. The remaining $290 million is required less urgently and will be included in the 2009-10 Additional Estimates Appropriation Bill (No.3).

The Home Insulation Program has seen unprecedented demand from householders with over half a million homes being insulated to date. The uptake level has exceeded initial expectations for the program.

The Bill requires immediate passage as the administered appropriations provided to the Department of the Environment, Water, Heritage and the Arts for 2009–10 are close to being exhausted. Based on the current take-up rate under the Home Insulation Program, the 2009–10 appropriation will be exhausted by late December 2009.

The current uptake rate for the Program is another positive confirmation of the success of one of the Government’s Stimulus Package measures in supporting jobs in not only the manufacturing industry but also in installer job creation and associated logistics. The rate of expenditure is in keeping with providing rapid job support and economic stimulus. Improved energy efficiency for Australian households is also being delivered.

The departmental costs within this Bill are for the Department of the Environment, Water, Heritage and the Arts and will provide adequate resourcing to efficiently implement the Government’s water purchase program in 2009-–10.

Appropriation (Water Entitlements) Bill 2009-2010

The Appropriation (Water Entitlements) Bill 2009-2010 requests urgent funding for the Department of the Environment, Water, Heritage and the Arts to accelerate water buy backs within the Murray-Darling Basin system.

The measures provided for in the Bill will enable $650 million for water buy backs to be brought forward from later years of the Restoring the Balance in the Murray-Darling Basin program under Water for the Future.

The objective of the Restoring the Balance in the Murray-Darling Basin Program is to purchase water entitlements to restore the environmental health of the Murray-Darling Basin system, and to smooth the transition to the lower sustainable diversion limits anticipated in the new Basin Plan. To date, the Restoring the Balance in the Murray-Darling Basin Program has secured the purchase of more than 600 gigalitres of water entitlements.

The funding bring forward in this Bill will enable a further acceleration of environmental water purchasing and provide for new water purchase initiatives in 2009-10.

The total appropriation sought in this bill is $650 million, comprising:

• $320 million, which the Minister for Climate Change and Water announced on 3 November 2009, and which was included in the Mid-Year Economic and Fiscal Outlook (MYEFO) 2009-10 - brought forward from 2010-11 ($220 million) and 2011-12 ($100 million); and
• a further $330 million, brought forward from 2010-11 ($100 million), 2011-12 ($100 million) and 2013-14 ($130 million), to provide for additional water buy backs in 2009-10, and which has been decided since MYEFO 2009-10.

The Bill requires immediate passage. The administered appropriations currently provided to the Department of the Environment, Water, Heritage and the Arts are not sufficient to cover the cost of trades that are likely to be offered to the Government under the water purchase program in 2009-10. With the additional appropriation, vendors will receive timely settlement of their water trades under the Restoring the Balance in the Murray-Darling Basin program.

Departmental costs of $4.9 million will also be provided to the Department of the Environment, Water, Heritage and the Arts to support the accelerated water buy backs. The departmental funding is outlined in the Appropriation (Water Entitlements and Home Insulation) Bill 2009-2010.

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009

General introduction

Organised crime affects many areas of social and economic activity, inflicting substantial harm on the community, business and government.

It has been estimated to cost the Australian economy at least $15 billion each year. 

In his Inaugural National Security Statement, the Prime Minister, the Hon Kevin Rudd MP, gave an assurance that the Government would act to address the threat posed by organised criminal activity.  The Crimes Legislation Amendment (Serious and Organised Crime) Bill delivers on that assurance.

The security of Australia is the Government’s highest priority, and maintaining that security requires decisive action to target serious and organised crime.

It is important that we put strong laws in place to combat organised crime. 

We need to target the profits of crime and remove the incentive for criminals to engage in organised criminal activity. 

We also need to empower our law enforcement agencies to defeat the sophisticated methods used by those involved in organised criminal activity to avoid detection.  Appropriate access to covert investigative tools, such as controlled operations, assumed identities and telecommunications interception, will assist police to investigate and disrupt criminal activities.

It is also vital to ensure offences extend to people who commit crimes as part of a group.

In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to a set of resolutions for a national response to organised crime. 

This Bill implements the Commonwealth’s commitment as part of the national response to enhance its legislation to combat organised crime by:

1.

strengthening criminal asset confiscation and targeting unexplained wealth

2.

enhancing police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection

3.

addressing the joint commission of criminal offences, and

4.

facilitating greater access to telecommunications interception for criminal organisation offences.

1. Strengthened criminal asset confiscation

The ability to trace, restrain and confiscate the benefits criminals derive from offences is a vital part of an effective justice system.

The Bill will implement a range of measures to extend and enhance the Commonwealth confiscation regime.  Several of these measures respond to recommendations in the review of the Proceeds of Crime Act 2002 made by Mr Tom Sherman AO, in 2006.

New unexplained wealth provisions will be a key addition to the Commonwealth criminal asset confiscation regime.

These provisions will target people who derive profit from crime and whose wealth exceeds the value of their lawful earnings.

In many cases, senior organised crime figures, who organise and derive profit from crime are not linked directly to the commission of the offence. They may seek to distance themselves from the offence to avoid prosecution or confiscation action.

Unlike existing confiscation orders, unexplained wealth orders will not require proof of a link to the commission of a specific offence.

However, there must still be a connection between the unexplained wealth and criminal offences within Commonwealth legislative power.

The Bill will also provide for freezing orders that will prevent a financial institution from processing withdrawals from a specified account for a period of up to three days.

Sometimes, there is only a very short window between law enforcement uncovering the illegitimate assets of a criminal group and those assets being transferred to avoid confiscation.

The new freezing orders will ensure offenders cannot frustrate restraining orders by using the time it takes to obtain a restraining order to dissipate funds.

Freezing orders will be strictly limited in duration and application and can only be sought where there are reasonable grounds to suspect an account contains the proceeds of an offence.  A person affected by a freezing order may also apply to have reasonable expenses excluded from the order.

The Bill will simplify arrangements for legal aid commissions to recover costs incurred by people who have assets restrained under the Proceeds of Crime Act 2002.

It has always been intended that legal aid commissions be reimbursed for the provision of legal assistance to persons whose assets have been restrained under that Act.

This is to ensure that all persons the subject of proceedings under the Act would be able to seek assistance from legal aid commissions without impacting adversely on other legal aid priorities.

The existing scheme, which requires legal aid commissions to recover legal costs directly from a person’s restrained assets,  has proven complex and at times, subject to delay.

Under the new scheme, legal aid commissions will be able to recover legal costs incurred by a person with restrained assets directly from the Confiscated Assets Account.

The Commonwealth will then recover the amount from the person who received the legal aid, up to the value of the restrained assets.

The Bill will also improve other aspects of the existing confiscation regime, including by ensuring information obtained under the regime can be disclosed to agencies with functions under the Act, which are generally law enforcement functions.  The information may be provided if it will assist in the prevention, investigation or prosecution of criminal conduct.

2. Cross-border investigative powers

Organised crime does not respect borders, and it is vital that police are able to work across jurisdictions with the same ease. 

The 2002 Leaders Summit on Terrorism and Multi-Jurisdictional Crime agreed that there should be a national set of laws for cross-border investigative powers. 

Model laws for controlled operations, assumed identities, surveillance devices, and witness identity protection were then endorsed by the Standing Committee of Attorneys-General in 2004.  

A key aspect of the model laws is that they provide for the mutual recognition of authorisations and warrants issued in other jurisdictions. 

This will enable more effective investigations across jurisdictions and reduce the risk of losing evidence.   The availability of consistent sets of powers across jurisdictions also facilitates closer cooperation between law enforcement agencies.

The Commonwealth implemented model laws for the use of surveillance devices in 2004.

This Bill implements the model laws for controlled operations, assumed identities and witness identity protection, replacing the existing regimes in the Crimes Act 1914. 

In doing so, some modifications have been necessary to reflect, for example, the unique role of the Commonwealth for national security and the investigation of crimes with a foreign aspect.

Controlled operations

In undercover operations, law enforcement officers may be authorised to do certain things that would otherwise be illegal in order to obtain evidence of a serious offence. 

For example, a shipment of drugs might be allowed to pass through border control in order to follow the trail to the buyers or distributors. 

In these kinds of operations – called controlled operations – the authorised person is protected from criminal responsibility and indemnified against civil liability for their actions. 

The admissibility of the evidence that is obtained is also preserved.

There are appropriate limits on this; controlled operations do not authorise conduct likely to cause death or serious injury, or involve the commission of a sexual offence. 

There are also strong accountability mechanisms in place to ensure that the exercise of these powers is publicly accountable.

The Bill also responds to concerns arising from the High Court’s decision in Gedeon v Commissioner of the New South Wales Crime Commission.

Following Gedeon, there is a real risk that there is insufficient protection for persons authorised under State or Territory controlled operations laws who commit Commonwealth offences. 

The new controlled operations regime will recognise corresponding State and Territory laws – removing the need to seek a separate Commonwealth authorisation. 

Further, the Bill will provide for retrospective protection for evidence obtained from, and persons who participated in, validly authorised State or Territory controlled operations. 

Assumed identities

The use of assumed – or false – identities is an important law enforcement tool allowing operatives to protect their real identity and infiltrate criminal groups.

Authorised persons can make requests to government and non-government agencies to obtain evidence of an assumed identity. 

For example, a fictitious driver’s licence or credit card. 

Persons using assumed identities would be protected from criminal liability arising only from their authorised use of that identity. 

For example, a person using a fake driver’s licence would not be prosecuted for having a fake ID, but could still be prosecuted for dangerous driving. 

Further, a person who is authorised to acquire a fake driver’s licence, but is not qualified to drive, will not be authorised to drive a vehicle. 

The new assumed identities regime will recognise things done in relation to an assumed identity authorised under a corresponding State or Territory law.

The safeguards and accountability measures for the new assumed identities regime in some cases exceed the protections provided in the model laws. 

For example, a person who has an assumed identity will commit an offence if he or she fails to return evidence of an assumed identity when requested to do so. 

This will act as a deterrent to those who may seek to use their false identity after the authorisation has ceased.

Witness identity protection

The Bill also puts in place a comprehensive scheme that protects the safety of witnesses who are undercover operatives and the integrity of operations in a transparent and accountable way.  This will ensure that participants in controlled operations and authorised users of assumed identities are not exposed in court proceedings.

Undercover operatives may be required to give evidence in legal proceedings.

The witness identity protection regime will allow an operative to give evidence using a pseudonym. 

For example, the operative could appear in court under his or her assumed identity.

In some cases, it may be necessary to protect the operative’s true identity to ensure their safety or to avoid prejudicing current or future investigations or security activity.  

While this is clearly in the public interest, this must be balanced against the right of an accused person to a fair trial.  

The witness is not anonymous or secret – defence counsel can still cross examine them and test their credibility.

The operative is still bound to tell the truth.

The operative will need to declare matters relevant to their credibility, for example, any prior convictions or allegations of professional misconduct.

This information is made available to defence counsel as part of the witness identity protection certificate.  

The court may allow defence counsel to ask questions which may reveal the witness’ true identity where there are compelling circumstances and it is in the interests of justice to do so.

The court will also be able to require the real identity of the witness to be disclosed to it. 

3. Joint commission

The Bill introduces a new joint commission provision which is targeted at offenders who commit crimes in organised groups.  This provision builds upon the common law principle of ‘joint criminal enterprise.’

If a group of two or more offenders agree to commit an offence together, the effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group. 

Joint commission targets members of organised groups who divide criminal activity between them.  If, for example, three offenders agree to import heroin into Australia and two of the offenders each bring in 750grams of heroin, all three offenders can be charged with importing a commercial quantity.

4. Telecommunications interception

The ability for law enforcement to intercept telecommunications is integral to the fight against organised crime. 

Telecommunications interception warrants are already available for the investigation of serious offences of a certain type or which carry a penalty of more than seven years imprisonment.

The penalties for organised crime association and facilitation offences are generally lower and therefore telecommunications interception cannot currently be used to investigate them.

However, in order to fight organised crime we must be able to target those who support the activities of criminal groups.  

The Bill will make telecommunications interception available for the investigation of offences relating to an individual’s involvement in serious and organised crime.

This will be limited to the individual's involvement in criminal organisations committing offences that are punishable by at least three years imprisonment. 

The amendments will allow law enforcement agencies to access stored communications such as emails and text messages, as well as real-time interception of targets’ communications.

This limit recognises the invasive nature of telecommunications interception and seeks to balance the need for operational effectiveness. 

These amendments will ensure that law enforcement agencies are equipped with the necessary tools to effectively combat organised crime.

Summary

In conclusion, this Bill contains a range of measures to comprehensively target serious and organised crime through enhanced asset confiscation, the introduction of joint commission and improving the ability of law enforcement agencies to conduct investigations.

Together these measures represent a significant advance on the tools available in the fight against serious and organised crime.  They are an important part of this Government’s commitment to keeping Australia safe and secure.

I commend this Bill.

Fair Work Amendment (State Referrals and Other Measures) Bill 2009

The Rudd Labor Government promised in Forward with Fairness to abolish the Coalition Government’s unfair Work Choices industrial relations laws and create a simpler, balanced and modern workplace relations system.

We achieved this with the commencement of the Fair Work Act 2009 on 1 July this year.

We now mark the next stage in implementing our plan, with the introduction today of the Fair Work Amendment (State Referrals and Other Measures) Bill 2009.

Before I outline the key features of the Bill, it is important to recall the stages of the Government’s workplace relations reforms that have been implemented to date.

Legislation passed by the Parliament to date

The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into Parliament on 13 February 2008.

It abolished the making of new AWAs and introduced the No-Disadvantage Test to ensure workplace agreements could no longer disadvantage employees. That Act also started the process to create new modern awards, which when coupled with the National Employment Standards, will complete a fair and comprehensive safety net of conditions for employees.

Award modernisation will result in the creation of around 150 easy to find and apply modern awards with national application to replace more than 4,000 state and federal instruments.

The next step of the Government’s workplace relations reform process was the passage of the Fair Work Act 2009 which commenced on 1 July 2009 and established:

• A comprehensive safety net of minimum wages and employment conditions that cannot be stripped away;
• a new agreements framework, with bargaining in good faith at the enterprise level at its heart; and
• A new industrial umpire to oversee the system, Fair Work Australia, and a new education and enforcement body, the Fair Work Ombudsman.

We proposed in Forward with Fairness that a uniform national system would be achieved either by State Governments referring powers for private sector workplace relations, or other forms of cooperation and harmonisation. Our vision is for a workplace relations system that is fairer, simpler and more flexible and promotes productivity and economic growth; and a system where businesses, large and small, are covered by one national law and system.

The Fair Work (State Referral and Consequential and Other Amendments) Act 2009 which I introduced to Parliament on 27 May this year was the first stage in implementing this national system.

That Act supported a renewal of Victoria’s referral of workplace relations powers from 1 July 2009 to provide continued certainty of coverage to the working people and employers of Victoria.

I indicated that the Act’s framework would be adapted in future Commonwealth legislation to accommodate anticipated further references of power from other States, while observing that the reference framework may require amendment to account for the views and needs of other States choosing to refer.

The benefits of a national workplace relations system for the private sector

The Bill I introduce today answers the many calls made by business over many years to end the overlap and duplication of state and federal workplace relations systems; to end the inefficiency, uncertainty and legal complexity for Australian businesses and employees.

For example, the Australian Chamber of Commerce and Industry has stated:

The level of complexity created by competing state and federal workplace relations systems is a decades-old problem which has been thrown into sharp relief by our contemporary market economy. Replication, overlap and confusion between state and federal workplace regulation has become increasingly unsustainable.

And the Australian Industry Group has also noted the complexity and wastefulness of multiple systems:

On top of this, all but one of the States continued to develop and enhance their own industrial systems. No matter how well many of these systems operate the fact remains that no employer wants to be faced with dealing with six different systems in order to expand its business throughout Australia. The intermeshing and clash of these systems has nourished generations of industrial lawyers.

In answer to these calls, the previous Government took the significant step of relying upon the corporations power of the Constitution to regulate for a national workplace relations system.

But for many Australian employers and employees, Work Choices only continued – and exacerbated – the problems of complexity, confusion, overlap and waste.

We committed in Forward with Fairness to work cooperatively with the state governments to create a uniform national workplace relations system for the private sector. And with today’s Bill, we demonstrate once more the Rudd Labor Government’s commitment to achieving important national reform through cooperative federalism.

This partnership approach is in stark contrast to the bullying tactics of the former Coalition Government. Their refusal to work with the States resulted not only in grossly unfair laws, but in an unwieldy system characterised by legal complexity and uncertainty of coverage.

In the absence of referrals of power from the states, the question of which system applies depends upon whether a business is a ‘constitutional corporation’ or not.

This means that corporations that derive revenue through donations (such as charities) or through government grants may not fall within the corporations power. The jurisdictional coverage of an employer can change at any particular point in time if its activities change.

For example, a charity raising money for medical research could open a second-hand goods shop to raise funds only to find it is now seen as ‘trading’ and that this leads to a change in its jurisdictional coverage.

The question of coverage also depends on the nature of the entity running the business. For example, a professional services firm (say an accounting or medical practice) might run as a partnership or sole trader and be in a state system. A very similar business down the street might be incorporated and therefore in the federal system and on a different award.

And there are many more examples of perverse outcomes, confusion and complexity.

There are thousands of employers and employees who are not trading corporations but who have been in the federal system for a long time, as a result of long-standing awards made in settlement of an inter-state industrial dispute. These awards were preserved on a transitional basis under Work Choices. In the absence of state referrals of power, employers and employees on these transitional awards would have fallen back to the state systems from March 2011.

For example, approximately 70% of the farm businesses covered by the Transitional Pastoral Award are unincorporated and without this Bill, these farmers and their employees would fall back into State systems. And the uncertainty they were facing under Work Choices was exacerbated by the fact that many farmers operate across state borders and would have had to commence to apply different state and federal workplace relations laws.

In support of farmers, the National Farmers Federation has been a vocal proponent of a uniform national workplace relations system, stating that “the overwhelming majority of farmers will be stranded [in the event that states do not refer their powers to the Commonwealth]” and that this would be “totally unacceptable”.

The uniform national workplace relations system for the private sector will resolve once and for all the confusion and complexity I have described.

Employers and employees will for the first time have the same laws, tribunals, minimum conditions, rights and entitlements as their counterparts doing the same work, regardless of whether they are within the same state or across a border; regardless of whether they are trading as a corporation, a sole trader or a partnership.

The new national system will make it far easier for businesses and employees to find the information they need. This will result in a permanent, intrinsic efficiency for businesses, especially for small businesses that do not have the benefit of specialised human resources staff.

With this Bill and associated state referrals, the Fair Work system will provide a single point of access for all private sector workplace relations services for Australia. There will be one website, one phone number, one tribunal and one inspectorate.

This means that governments and tax-payers will benefit too. Nationally, state governments spend upwards of $60 million of tax-payers’ money each year maintaining duplicate administrative functions and regulation. The new system will be far more efficient into the future.

Cooperative federalism and the benefits of State referrals

For all of these reasons, there is significant support among the states for the national system.

The Governments of South Australia and Tasmania have announced their intentions to follow the Victorian Government’s lead and make referrals of their private sector workplace relations powers. This is a significant vote