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.
In this country, we are facing an epidemic; in fact, in the words of some people, a pandemic in relation to crystal methamphetamine, otherwise known as ice. It is for this reason that I speak strongly in support of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. This bill will give our law enforcement agencies the tools and the powers they need to get on top of this, to do their job and to support their state colleagues. It will ensure that Commonwealth laws are robust and effective to target the criminals that we so desperately need them to do, and reduce the heavy cost of crime on all Australians and the heavy cost on law enforcement agencies. I want to focus on how this bill will increase the operation and effectiveness of serious drug and precursor offences. Let me give you the statistics.
Last year in 2014, it is estimated that 2.5 per cent of all Australians over the age of 14 years—that is half a million people—used methamphetamine. To put that into perspective against some of the other countries with whom we are compared, it is three to five times the estimated use by Americans, British and Canadians. Australia has one of the highest rates in the world of illicit methamphetamine use and certainly the highest amongst the developing nations. It is no moment of pride for me to state the fact that, unfortunately, Western Australia seems to be towards the top of that cohort.
In Victoria, the coroner's office reported that in 2010 one in every 25 drug-related deaths was due to crystal methamphetamine. But two years later, by 2012, that figure had changed from one in 25 to one in 10 deaths. Last September, The Medical Journal of Australia published a study by the Turning Point Alcohol and Drug Centre that showed there was a 318 per cent increase in hospitalisations from 2010-11 to 2011-12—one year—in Melbourne for ice problems. Whether that was an increase in the number of users or the greater purity of the available drug, the jury was out. That figure of a 318 per cent increase in a year surely points to the need for the powers that will be given in the crimes legislation amendment bill.
Nationally, we have had an increase in the use of this scourge of a drug by some 10 per cent. In a study conducted by the Institute of Criminology, police detainees in key areas around the nation—look at these figures because it is right across the states and territories—found that 61 per cent of those held in the Kings Cross police station in Sydney tested positive to amphetamine, as did 40 per cent in Brisbane and 43 per cent of those in the watch-house in Perth—and it does not get any better.
I made the comment that we are facing an epidemic, and it may indeed even be a pandemic. Let me quote from the acting CEO of the Australian Crime Commission, Paul Jevtovic. In the foreword of the Illicit drug data report: 2012-13 released in April of last year, he wrote:
… with its relative accessibility, affordability and destructive side-effects, crystal methylamphetamine is emerging as a pandemic—
akin to the issue of 'crack' cocaine in the United States.
That is what we are facing in this country. We all know about it. We speak about it in this place, but of course it is personal. Only last week in this place did one of our colleagues speak about how personal it was to their family.
In our state of Western Australia we are blessed to have a very highly competent and highly respected police commissioner in Commissioner Karl O'Callaghan. Only last Friday did he speak publicly about the fact that his son Russell has been charged over yet another domestic incident in which he allegedly made threats to kill and held his former partner against her will for a two-day period.
Commissioner O'Callaghan speaks personally and with a high degree of grief about the journey of this son. He maintains close contact with him. It must be incredibly difficult for both, but he has the wisdom and the courage to speak publicly about this. These latest charges came after his son served eight months in jail for attempting to manufacture methamphetamines in 2011. This is the point that I want to make—and I am quoting from O'Callaghan in a press conference the other day. He said:
There’s always a chance that these things can happen—
that is, a return to the past—
and you live with the fact that it’s always two steps forward and one step back. It’s a long process. It might take a lifetime.
Obviously, when asked how his son was coping in prison, he said it is not easy.
As I look up into the chamber where we are joined today by young members, it reminds me of the fact that this is right across the entire spectrum of the community—older people, middle-aged people, younger people and those who have never come into contact with drugs before. Why is it so? One, because we have got so much disposable income. I learnt from people who are knowledgeable in this space that the cost per unit, however it is sold, is the highest in Australia of any country in the world so therefore the market says: bring the product to Australia. Secondly, it is the ease with which it can be manufactured.
I heard from a person the other day who has a campervan. He drove it to a place called Green Head on our Western Australian mid-west coast and pulled up—he is a commercial photographer. Within minutes, a police car pulled up beside him so that he could not open his driver's door. He put the window down and said, 'What are you doing here?' They said, 'We want to do a licence check.' They did a licence check. He said, 'We're in the middle of nowhere. You've all of a sudden appeared. What's all this about?' They said that most of their work now is associated with trying to track down people who hire campervans, go to remote locations and use the campervan stove to actually manufacture their methamphetamine. If I have got one message to the young people here today, it is: don't try drugs.
Another point that was made by Commissioner O'Callaghan the other day—and, again, we see much of this in the media and we have even seen advertisements about it—is the fact that our hospital systems are being absolutely overrun by people affected with methamphetamine. I spelt out the figures a few moments ago, I think: a 300 per cent increase in hospitalisation. It is not just the hospitalisation—and I appeal to you young people, through you Madam Acting Deputy President O'Neill. As a veterinarian I have had the opportunity to see the impact of hallucinatory and stimulatory drugs on animals. I have, for example, experienced an instance where six people tried to hold a greyhound dog down. Inadvertently, it was given, as it turned out, a barbiturate anaesthetic. Greyhounds happen to be not sensitive to barbiturates—they are sensitive to them but they do not have the effect of anaesthesia. That dog was able to throw six adult men across the room simply because of the adverse effect of that drug.
We see in the hospitals not just the fact that these people overburden the hospital system but, with the aggression that comes from methamphetamine, that their whole behaviour changes. The level of aggression turns these people into monsters. We do not expect the hospital system, the nurses, the doctors, the orderlies or the attendants to have to put their lives at risk.
Again, only at the end of May this year Commissioner O'Callaghan, working with the Mental Health Commissioner and the relevant minister Helen Morton in our home state, formed a group—'clinicians will form front-line mental health teams, be given special police powers and join officers on the beat under a bold new plan that could be introduced within months'—to deal with people with mental illnesses, particularly those affected by methamphetamine.
It is easily available. It is easily manufactured. The precursors—pseudoephedrine is available in pharmacies all over the place used in medications to support people with colds and flu. It is easily available, and we have a community of people who seem, for whatever reason, to be willing to try these psychotic drugs and then become addicted to them. Anybody who wants to read the instances of people—I read a story in the last couple of days: a young female journalist here in Australia decided the best way of getting a story was to actually expose herself to methamphetamine. She became addicted, and it is a very, very sobering story.
The personal costs are absolutely horrendous because, if people think that they can try this stuff once and walk away from it, history tells us they cannot. They will end up being a statistic. It will be personal, as it is in so many families in Australia.
My colleague Senator McGrath has already detailed some of the elements of the bill as they relate to serious drug and precursor offences. I focus on precursors because we know the law at the moment is such that, if an incoming supply of this product is intercepted by the police, they can remove the actual active chemical, they can replace it with an inert substance, and—I will not repeat, for purposes of time, Senator McGrath's comments—in courts of law people have been able to get off the more serious charges because when the inert material is presented the defence have said, 'Oh, that person possibly couldn't have known what was involved.' I point to a section of the bill headed 'Knowingly concerned' because it is relevant to this area. The bill will make sure that there are sufficient prosecuting options in Commonwealth criminal law by making those who are 'knowingly concerned' in the commission of an offence liable for their involvement. It will ensure that people who actively participate in crime who cannot currently be held liable for it, because they do not fit neatly into categories of liability, can nonetheless be prosecuted. It is directly relevant to the area about which I am speaking. The concept of 'knowingly concerned' was previously in the Crimes Act but was not carried over to the Criminal Code in the 1990s. Its absence has since attracted judicial comment, and—this is relevant—the Commonwealth Director of Public Prosecutions has found its absence has hindered prosecutions, often making them more complex, less certain and, in those instances presented by my colleague Senator McGrath, where hung juries have meant that these people have otherwise been found not guilty.
There are other very worthy elements to the bill: gun-related crime, forced marriage offences, and issues associated with the tackling of crime and the keeping of our community safe. But in my contribution today I wanted to focus on this absolutely evil epidemic becoming a pandemic affecting everyone across every socioeconomic status. It does not matter where people sit in age and it does not matter where people sit in terms of their own family circumstances. It is a scourge. It is national and it needs leadership in the federal sphere. I urge for that purpose alone that my colleagues support the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015.
I rise to speak on the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. This bill strengthens our existing laws and law enforcement to further protect Australians. Increasing powers of law enforcement is no small matter. It has to be measured, relevant and have a minimal impact on the day-to-day lives of ordinary, law-abiding Australians but must reach deep into those who seek to commit crime. To that end, Australia's commitment to human rights has been considered every step of the way and I am pleased to note that there is minimal impact if any.
We have also considered in a general sense the impact on the efficiency of law-enforcement agencies. These agencies are publicly funded organisation where the people of Australia have a right to expect the highest standard and efficiency. This bill will increase the ability to fight crime and give the people of Australia greater value for their tax dollar. Little things such as the transfer of a federal prisoner have had to take place at a prison and not at an airport, police station or other places of convenience. This has been corrected to allow for more efficiency and better spent tax dollars. It is far-reaching and takes into account the events in today's world. It is sad but necessary to update war crimes to take into account non-international armed conflict—in other words, what we are now seeing in Syria. We must stand in the international world and act as a civilised nation, extending our laws to deal with outrages on personal dignity. I need not remind everybody here of what we are seeing on TV of the atrocities against people in the Middle East. As they reach out to us, we will reach out with our laws so that anybody who thinks that they can go out and contribute to these outrages with impunity will need to think again.
This bill also tackles money laundering and counter-terrorism to address enforceability and operational constraints, again making our investment in crime more efficient and not creating any onerous impost on our citizens. Today we have to tackle the black market on illegal weapons and also the grey market. The grey market is weapons that could be legally owned but have disappeared into a grey area, and we risk losing sight of them. Firearms are designed for one purpose: to kill. To treat them as anything less is a mistake.
This legislation does not take away any rights or make it harder for anyone to legally own a firearm or weapon. It merely serves to increase the punishment of those who break the law and as a deterrent to those who are considering breaking the law. No person acting legally has anything to fear. It strengthens our drug laws to prevent precursor materials being brought into Australia and to prevent illegal drugs being manufactured. Many of the ingredients are common and have legal usage, but it is illegal to use them in this way, and we must prevent it. We simply cannot let this pass us by and leave it to the state agencies to deal with once it has been made into an illegal substance. This adds another weapon into the nation's fight against drug use and the subsequent negative effects on our society.
This bill will prevent people belonging to an organisation involved in crime knowing what is occurring but, as long as they have taken no active part, not being responsible. They can no longer hide behind the defences of: 'But I didn't do anything active. Yes, I knew,' and, 'Yes I belong, but I did not actively participate.'
There are stronger enforcement laws on forced marriage aimed not at any culture but to protect those who cannot protect themselves, regardless of their background. It is to protect children and those without the capacity to fully understand what marriage means; just because they agreed does not mean they were not capable of making an informed decision. It makes the penalties commensurate with slavery-like offences.
As federal offences are heard in state courts and offenders dealt with in the state justice and corrections systems, we need to be able to share information with them for better management of offenders. It is no small impost we ask of the states, so therefore the federal government needs to make state activities undertaken on our behalf as easy and efficient as possible and as safe as possible for state employees. Consider not being able to inform a state corrections system of a violent offender or an offender with mental health issues. In that situation, we put corrections officers at risk.
Some of this legislation addresses the Law Enforce Integrity Commissioner overview of the law enforcement agencies. The LEIC has the important role of maintaining public confidence in law enforcement agencies, but must do this with a balance that does not unnecessarily hinder their operations and assures personal liberties are not unduly hindered. It is a balance that is achieved with these amendments. The nondisclosure sections of not giving updates or outcomes to a complainant are not to be taken lightly nor used to shield senior officers—as in my home state of Queensland. They are there to maintain the operational integrity of the law enforcement agencies and the LEIC. This is no small measure and was not considered lightly in gaining that balance on detecting and preventing crime and the right to know.
In all, this is a well-considered bill which will enhance our law enforcement agencies in Australia, and I fully support this bill.
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.