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Wednesday, 22 June 2011
Page: 6960


Mr KEENAN (Stirling) (18:25): I rise to speak on the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011. The coalition supports the purpose of this bill, which is to address potential constitutional issues with Australia's current legislative framework for registering proceeds of crime orders. We support the aim of the amendments, which is to ensure that the framework for providing assistance to foreign countries, international tribunals and the International Criminal Court in registering proceeds of crime orders issued by them continues to operate as intended.

It is no secret that the whole purpose of organised crime is to generate profit. It has been estimated that organised crime costs the Australian community approximately $15 billion a year, according to figures from the Australian Crime Commission. The coalition has a strong history of targeting serious and organised crime and continues to place priority on the ACC as a crime-fighting body. At the federal level, the former Howard government established the Australian Crime Commission in 2002. Through the ACC, state and federal police work together to investigate serious and organised crime.

However, since coming to power, Labor have cut the funding to the ACC and have reduced its staff over the years. In their latest budget, brought down in May, they are axing another 23 staff from the ACC. The Gillard Labor government have also axed a further 90 staff from the Australian Customs and Border Protection Service on top of the 250 cut in the previous year's budget. Customs plays an integral role in stopping the importation of illicit goods smuggled into the country by organised criminal syndicates through our ports and airports. In the latest budget, Customs revealed that the number of reported consignments of air and sea cargo has gone up significantly and that that number is forecast to go up even further over the next four years. Despite this, Labor have not increased the amount of air and sea cargo that is inspected or examined, which means even less cargo will be properly checked under their new, pared down regime.

In the 2009-10 budget, Labor cut the budget for Customs cargo screening by a staggering $58.1 million. Labor's cut resulted in a reduction of 75 per cent in air cargo inspections—that is, 75 per cent less air cargo is being inspected when it comes into the country. In the recent Customs annual report, it was revealed that only 4.3 per cent of sea cargo is X-rayed and only 0.6 per cent of sea cargo is physically examined. Even less cargo will be inspected and examined now that there is an increase in the volume of cargo coming into the country. So we have a significant increase in the volume of cargo coming in through both our seaports and airports, yet the government is continually slashing funding—the end result being that so much less of that cargo is actually being examined for contraband, whether that be precursors for drugs, drugs themselves, illegal weapons or other things we would like to keep out of the country. Clearly the government is not doing all it can to combat organised crime when it has been so lax and so disastrous for our border protection regime in so many ways.

By reducing the amount of cargo that is checked, Labor are making our airports and ports significantly more vulnerable to organised criminal syndicates, who are taking advantage of the lax conditions to smuggle in drugs, weapons or other contraband. Labor have also weakened our national security by cutting funding for Australia's premier crime-fighting agency, the Australian Federal Police. They have cut AFP staff numbers at a time when the AFP are stretched beyond capacity and under unprecedented pressure to respond to the chaos within our immigration detention network. These diversions from the core crime-fighting tasks, caused by Labor's mismanagement of our borders, only serve to give organised crime a helping hand. Working together with appropriate resources, the Australian Federal Police, Customs and the Australian Crime Commission would have been the weapon of choice against serious and organised crime in Australia. Labor's budget cuts in this area are a slap in the face for our law enforcement agencies and the Australian public, who these agencies are tasked to protect. The coalition believes our key law enforcement agencies need to be appropriately resourced in order to stop organised criminals from growing their business.

It should be acknowledged that the Commonwealth Proceeds of Crime Act 2002 was introduced and passed under the former coalition government. The act provides a scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. The act allows in some circumstances for it to be used to confiscate the proceeds of crime against foreign law or the proceeds of crime against state law. The act also permits confiscated funds to be given back to the Australian community in an effort to prevent and reduce the harmful effects of crime in Australia. The act was the result of a review which found that the inclusion of civil forfeiture at the federal level would vastly extend the capacity to recover funds from breaches of federal law. The coalition supports the strategy of being able to confiscate assets and profits which are the result of crimes committed overseas.

Australia has a well-developed system for cooperating with foreign countries and restraining and confiscating benefits derived from foreign criminal offences where those assets are located within Australia. Part VI of the Mutual Assistance in Criminal Matters Act 1987 enables an Australian court to register and enforce orders raised by a foreign court. These foreign orders comprise restraining, confiscation and pecuniary penalty orders over property derived from serious criminal offences. Once a foreign order is registered in Australia it is able to be enforced as though it were an Australian order made under the Proceeds of Crime Act. Provisions in the International Criminal Court Act 2002 and the International War Crimes Tribunals Act 1985 expand upon the regime in the Mutual Assistance Act and allow an Australian court to register and impose forfeiture orders issued by the International Criminal Court and designated international war crimes tribunals.

The High Court in the case of International Finance Trust Co. Ltd v New South Wales Crimes Commission 2009 found provisions in New South Wales legislation which allowed for the making of a restraining order ex parte were consti­tutionally invalid because they infringed the constitutional integrity of the New South Wales Supreme Court in a way that was inconsistent with its status as a chapter III court under the Constitution. The court had no discretion whether to hear from a person affected by the order and there was no statutory provision available which allowed the person affected to challenge the making of the order. In particular, the decision reinforced that courts must be authorised to exercise control over the making or enforcement of proceeds of crime orders.

As noted in this bill's explanatory memorandum, the amendments aim to ensure the legislative arrangement providing a court with the power to register and enforce foreign orders continues to function as intended. This bill will make minor but important amendments to the Mutual Assistance Act, the International Criminal Court Act and the International War Crimes Tribunals Act. The amendments will allow a court greater discretion when deciding whether a foreign order should be registered and enforced in Australia and whether or not to hear an application for registration on an ex parte basis. The amended provisions will necessitate a court to register a foreign order unless it considers that it would be contrary to the interests of justice do so. In deciding whether registration of a foreign order is in the interests of justice, the court is to give due regard to the primary intention of the system.

The bill will also insert an object clause into subdivision A of part VI of the Mutual Assistance Act in order to clarify the intention of the system. The purpose of this subdivision is to allow Australia to give effect to foreign orders in circumstances where a property related to serious foreign offences is located within Australia. The amendments aim to bolster reciprocity as the basis of international crime cooperation. It aims to ensure Australia is able to provide the same level of assistance to other countries as we would expect from them.

I turn to a very serious proceeds of crime matter that I believe the government needs to take action on, and that is the proceeds of crime that might accrue to Mr David Hicks as a result of the publication of his book Guantanamo: My Journey. This issue has been raised in the Senate by my colleague Senator Brandis, and he and I, and I suspect all of the opposition, would urge the government to undertake appropriate action to ensure that Mr Hicks does not make a substantial financial gain specifically out of the crimes that he himself has admitted that he committed. This is somebody who has admitted that he consorted with Lashkar-e-Taiba, which is a diabolically bad terrorist group responsible for killing literally hundreds of people, and killing two Australians. Now this man is going to perhaps earn up to $350,000, by some conservative estimates, based on those crimes—crimes which, I again remind the House, he has pleaded guilty to.

Senator Brandis has been particularly persistent in pursuing the government over this matter. As far as the opposition is concerned, it should be very straightforward—Mr Hicks has admitted his crimes and he should not be able to profit from them. I asked the Attorney questions about this in the House last week, and all he would say was that he has commenced an investigation into the applicability of the legislation to Mr Hicks's publication that details his support of and participation in a terrorist organisation.

Part 2-5 of the Proceeds of Crime Act provides for the making of a literary proceeds order where a person has committed an indictable offence against either Australian or foreign law and the court is satisfied that the person has derived literary proceeds in relation to the offence. The offence to which Mr Hicks pleaded guilty under the Military Commissions Act clearly falls within a definition of a foreign indictable offence under the Proceeds of Crime Act. It is symptomatic of this government that they would sit on their hands and not take more sensible action against Mr Hicks in what is clearly an open and shut case of somebody standing to profit very significantly from his crime. In the case of Mr Hicks, of course, the crimes for which he has pleaded guilty are incredibly serious. Indeed, it is very difficult to believe that there are many crimes worse than consorting with terrorists, particularly really vicious terrorists such as Lashkar-e-Taiba. So I urge the government to finally take some action on this matter and not let it stand that any Australian citizen could profit from their criminal activity.

The coalition support the passage of the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011. We always support measures that ensure Australia is not seen as a safe haven for criminals and that limit the ability of criminals to profit from their crimes. I commend the bill to the House.