Tuesday, 13 March 2012
Crimes Legislation Amendment (Powers and Offences) Bill 2012; Second Reading
I table a revised explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
Providing law enforcement agencies with modern tools to combat modern forms of crime is the responsibility of every Government. The Gillard Government is delivering on its commitment to combat crime, while also establishing strong safeguards and protections for victims, those accused of crimes, and the general public.
The Crimes Legislation Amendment (Powers and Offences) Bill 2011contains important amendments to Commonwealth law enforcement legislation that will provide further tools to ensure the effective investigation and enforcement of crimes, and make enhancements to the safeguards applicable in those investigations.
[DNA Forensic Procedures]
Firstly, this Bill will increase the transparency and reduce the complexity surrounding the procedures governing the collection, use and analysis of DNA forensic material through amendments to Part 1D of the Crimes Act 1914.
The majority of these amendments are in response to the 2010 DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 led by Mr Peter Ford.
The Review, which involved detailed consultation with Commonwealth, State and Territory stakeholders, focussed on ensuring the efficiency and effectiveness of DNA forensic sampling, profiling and matching while also appropriately safeguarding civil liberties and privacy.
Those themes are reflected in the amendments contained in this Bill.
Of significance to law enforcement agencies, the Bill contains amendments to help Commonwealth agencies work more effectively with their State and Territory counterparts in cross border criminal investigations involving DNA forensic evidence.
The amendments enhance the ability of the Australian Federal Police to respond to requests from foreign law enforcement agencies to match DNA profiles on the National Criminal Investigation DNA Database with profiles obtained as part of criminal investigations by foreign agencies.
The Bill also increases efficiencies in DNA sample collection.
Alongside these law enforcement measures, the Bill will make a series of improvements to the consent processes relating to the collection and use of DNA forensic material and other safeguards that currently apply to forensic procedures.
One such amendment will enable new consent forms to be prescribed under regulations that will ensure the information required to be provided to persons whose consent is being sought to a DNA forensic procedure under the Act, is both consistent and comprehensible.
The Bill will also clarify the processes currently in Part 1D for suspects and offenders to access part of their DNA sample for the purposes of innocence testing, and to other material related to their sample, such as copies of its analysis or copies of related records.
In addition, the Bill will:
The Bill also addresses some minor drafting issues.
A key message that came out of Peter Ford's review of Part 1D of the Crimes Act is that it is a very complex area of law. I am confident that the amendments contained in this Bill go significantly towards reducing that complexity and enhancing the procedures governing DNA collection and use for law enforcement and suspects, offenders and volunteers alike.
This Bill will also enhance the Australian Crime Commission's information sharing capabilities. It will establish a comprehensive regime under which the Commission can share information with Commonwealth, State and Territory agencies and international law enforcement and intelligence bodies.
To effectively combat crime however, Government needs to share its information beyond just government agencies, and proactively collaborate with the private sector.
To assist in the ACC building preventative partnerships with industries that are exposed to serious and organised crime threats, the Bill will provide the ACC CEO with the ability to share information with private sector bodies for a range of specified purposes where the CEO considers it appropriate. This will enable the ACC to share information and intelligence with private sector bodies to enable them to be aware of vulnerabilities and threats that exist in their respective industries. These changes reflect the responsibility held by the private sector to contribute to the fight against organised crime and will ensure that they are better equipped to do so.
Stringent safeguards on the handling, storage and disposal of any information provided will be applied by the ACC CEO. In addition new criminal offences will apply to the misuse or inappropriate disclosure of this information. This will ensure the proper protection of information that has been disclosed to the private sector.
[Australian Commission for Law Enforcement Integrity]
Schedule 4 of the Bill contains amendments to the Law Enforcement Integrity Commissioner Act 2006 to provide the Australian Commission for Law Enforcement Integrity (ACLEI) with a contempt power and to enhance the Commission's capability to investigate corruption.
The Commission was established in 2006 to investigate allegations of corruption and to enhance the integrity of Commonwealth law enforcement agencies.
The amendments will enable the Integrity Commissioner to refer a person to the Federal Court of Australia or a Supreme Court of a State or Territory for contempt of the Commission. The person will be in contempt if they fail or refuse to co operate with requests such as refusing or failing to answer the Integrity Commissioner's questions.
These provisions are designed to motivate an uncooperative witness to reconsider his or her position and will provide a swift and powerful mechanism for the Integrity Commissioner to deal with uncooperative witnesses.
These amendments will mirror the contempt provisions in the Australian Crime Commission Act and will align the Australian Commission for Law Enforcement Integrity with various State bodies which exercise comparable coercive investigative powers.
The Bill also extends the sum period for which the Integrity Commissioner may be appointed in response to a recommendation of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (ACLEI). This amendment will allow for continuity of leadership in a situation where ACLEI is undergoing extensive change, or where there is an ongoing, serious investigation.
Under this amendment, the maximum sum period for which the Integrity Commissioner may hold office will be extended to seven years. The requirement that any single period of appointment not exceed five years remains unchanged.
[Commonwealth Drug Offences]
New measures are also proposed in the Bill to help combat the emergence of new and illicit substances, and are an important step in halting the emergence of a new drugs market in Australia.
It is proposed that the Criminal Code Act 1995 be amended to list additional drug substances and quantities to be subject to the full range of Commonwealth serious drug offences.
As an example, the amendments will enable law enforcement agencies to capture individuals and organised crime groups involved in drug importation and other drug related activities involving substances such as Meow Meow and Special K.
The Bill will also assist the Australian Customs and Border Protection Service perform its vital role in intercepting and seizing illicit drugs detected at the Australian border, by overcoming a legislative anomaly which currently exists in relation to their ability to seize illicit substances without a warrant. The Bill proposes amendments to ensure that the powers available to Customs to seize all illicit drugs – whether proscribed under Customs Regulations or the Criminal Code – are consistent.
[Commonwealth parole amendments]
The next area of reform in the Bill relates to Federal offenders. The Bill proposes amendments to the Crimes Act to implement recommendations from the 2006 Australian Law Reform Commission Report - Same Crime, Same Time: Sentencing of Federal Offenders.
Currently, there is no discretion to refuse parole to a federal offender serving a sentence of imprisonment of less than 10 years, even if reports from corrective service agencies do not support the granting of parole.
The amendments will ensure that release on parole of all federal offenders is a discretionary decision. This is consistent with the general approach in the States and Territories.
The Attorney-General will be able to refuse or delay the release of an offender on parole, where this is appropriate.
For example, under current arrangements federal child sex offenders can refuse to participate in sex offender treatment programs, as they know they will be released at the end of their non parole period regardless. Offenders would be encouraged to take part in rehabilitation programs if they knew that this would be taken into account in deciding whether they should be released on parole.
Further, amendments will be made to provide that the federal offender's parole period ends on the same day as his or her sentence and that the parole supervision period may extend to the end of the federal offender's parole period. Currently, for federal sentences other than a life sentence, the maximum parole supervision period is three years. By establishing that the supervision period may extend to the end of the offender's parole period, this will allow federal offenders who may require ongoing supervision during their parole period to receive this assistance. Such supervision may be required, for example, if the offender is engaging in ongoing drug use, or is displaying other worrying behaviour.
[Commonwealth fine enforcement]
This Bill further amends the Crimes Act to improve the enforcement of Commonwealth fines.
The Commonwealth does not have a fine enforcement agency and relies on State and Territory agencies to enforce Commonwealth fines on its behalf.
Currently, these agencies cannot impose certain penalties on persons who default on the payment of Commonwealth fines unless they first obtain a court order. It is expensive and time consuming for fine enforcement agencies to return to court to obtain an order, and this acts as a disincentive to do so.
These amendments will empower State and Territory fine enforcement agencies to enforce Commonwealth fines through non judicial enforcement actions without first obtaining a court order. These non judicial enforcement actions may include, for example, garnishment of a debtor's wage or salary.
The amendments will not affect other fine enforcement options that are currently available as an alternative to paying a fine - such as voluntary community service or suspension of a person's drivers licence.
[Proceeds of Organised Crime]
Lastly, the Bill will amend the Proceeds of Crime Act 2002 and the Director of Public Prosecutions Act 1983 to allow a court to restrict the publication of certain matters in relation to applications for freezing orders and restraining orders.
As freezing orders and restraining orders are made early in proceedings, it is important that courts are empowered to prevent the early publication of information that could compromise a proceeds of crime investigation or a related criminal investigation.
A minor amendment will be made to the Proceeds of Crime Act to expand the definition of 'authorised officer' to include AFP employees and secondees to the AFP who are authorised by the Commissioner of AFP.
This amendment will ensure that AFP employees and other Government secondees working in the new multi agency Criminal Assets Confiscation Taskforce, can be appointed as authorised officers, and fully utilise their significant expertise in proceeds of crime investigations.
The measures contained in this Bill are important to help support the fight against crime by enhancing laws relating to the investigation and enforcement of Commonwealth criminal matters. Importantly, they are also balanced by significant safeguards.
I commend the Bill.