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Wednesday, 22 June 2011
Page: 6963


Mr HAYES (FowlerGovernment Whip) (18:37): I also rise today to support the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011. On the face of it, the bill may be seen by some to be a minor amendment, but it is an amendment that has enormous implications for clarifying the process of foreign orders and it provides a mechanism by which we can strengthen our fight against international crime.

Australia has always been dedicated to its international obligations, and that includes cooperation with other nations when it comes to criminal matters. I have often spoken in the House about how crime knows no boundaries. When we have discussions about police and law and order is a folly for us to talk about state or territory policing, because the truth is that none of the criminals out there read the Constitution or look at the geography when they seek to participate in criminal endeavours. They look for loopholes and opportunities, and the same applies when we are looking at international crime.

One thing that always sticks in my mind, and it is refreshing to hear it from a lot of the younger people in law enforcement these days, is that it is about not only catching the crook but also putting these people out of business. I am often attracted to comments about how we have to look at criminal activity as a business. It is no doubt a nefarious business, but it is still a business with a profit motive and we need to do all we can to put those businesses out of business. This bill goes to the heart of that.

In my time acting for various police organisations, and more recently in my dealings with the Australian Crime Commission and the Australian Federal Police as a parliamentarian, I have learned that the proceeds of crime invested in Australia are not necessarily from crimes that were committed in Australia. Not all that long ago I had the opportunity as part of a parliamentary delegation to visit a number of countries to discuss the contemporary efforts being deployed against serious and organised crime by leading law enforcement agencies. I was looking at one of the reports we wrote where we quoted from the head of the Italian national police, Mr Rafael Grassi. He highlighted to our committee the importance of going after the money and depriving criminal groups of their assets. As a member of the Italian national police, he was very much at the forefront in the fight against the Mafia. He indicated to us that Mafia members are prepared to spend time in prison and conduct further criminal activity outside prison, but what really harms them is going after their assets. Essentially, that is what we are trying to do through this legislation. We are trying to make it more conspicuous and to make it easier for the Australian courts to assist in the process.

Wherever crime occurs it is obviously detrimental to a community. If criminal assets are being invested in Australian businesses it is detrimental to this country. Every individual has the right to have their property protected. It is the responsibility of our government to ensure that our police have the resources they need and the legislative support they require to do their jobs and achieve the objective of putting criminals out of business. This bill indicates that we will not tolerate criminal activity and we will use every opportunity to make it more onerous to pursue criminal endeavours, even if they are investing those moneys abroad.

Since ratifying both the United Nations Convention against Transnational Organized Crime and its protocols in 2004 and the United Nations Convention against Corruption in 2005, this country has worked to develop a comprehensive and transparent framework to ensure the seizure and confiscation of assets held as a result of criminal activities. A foreign proceeds of crime order is an order that restrains or confiscates the proceeds or instruments of a foreign offence, or orders a person to pay a certain amount equivalent to the benefits they have derived from a criminal activity, as determined by a foreign jurisdiction.

The confiscation of assets held as a result of criminal activity achieves two objectives. Firstly, it deprives the criminal of the benefits of their crime—the profits of their business, if I can put it that way. In doing so, it reduces the motivation for engaging in a criminal endeavour, because they know at some stage they may have all of their so-called hard-earned cash taken away from them. So the objective is to reduce the motivation for engaging in criminal activity by essentially attacking the business model underpinning criminal endeavours. The second and no less important aspect is that it removes assets that would ordinarily be available to be reinvested into other criminal endeavours. That is also significantly attractive and a laudable objective.

One thing we have learnt is about the amount of criminal activity occurring in Afghanistan. Whilst Afghanistan has the vast majority of the world opiate trade—somewhere about 97 per cent, I think—we know that it is finding its way to not just the criminals who underpin that trade, Colombians and others; it is also supporting terrorism. There is a clear link in respect of that, as Antonio Costa made clear to me when we visited him at UNODC, the United Nations Office on Drugs and Crime. They are certainly single-minded on the fact that foreign countries must be cooperating to the maximum to ensure that the proceeds of criminal endeavour are confiscated and not allowed to be kept in one foreign country in some form of safe haven.

I know there are countries that do accept investments provided that it cannot be proved that the investment was derived from a criminal activity. We need to be far more proactive than that. We are not going to be silenced on receiving foreign benefits from crime and using this country as a safe haven so it can be reinvested or simply transferred back to other criminal organisations. Australia must be on the front foot doing what it should be doing as part of its obligations in the international law enforcement community and doing everything possible to shut down serious and organised crime.

The Australian Institute of Criminology has stated that by confiscating stolen assets we are helping to combat international money laundering, particularly money laundering to finance international terrorism. This legislation is not just another technical amendment proceeding through this place; this is something that has very serious ramifications. Like all aspects of business, crime is constantly changing. We need to ensure that our laws meet the challenge of criminal enterprises thinking it is a feasible objective to operate in this country, whether directly in criminal activity or by investing their proceeds of crime in this country.

In the wake of the issues raised by the High Court in the International Finance Trust Company Ltd v New South Wales Crime Commission in 2009, these amendments must be made to the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002 and the International War Crimes Tribunal Act 1995 to ensure greater success in the prosecution of international criminals. In this case, the High Court found a New South Wales scheme that required a judge to determine and hear an ex parte application for a restraining order which was unconstitutional. That is why we need to act to bring in these supportive amendments. This case in New South Wales highlighted the fundamental importance of ensuring that the functions and powers imposed on our judges by legislation do not conflict with the integrity of the functions provided for under chapter III of the Constitution. Under the current structure, the courts have no discretion as to whether to hear from a person affected by an order. There is also no statutory provision available to allow for the person affected by the order to have the challenge reviewed. This amendment ensures that the general framework of providing assistance to foreign countries, international tribunals and international criminal courts in registering proceeds of crime orders issued by them continues to operate as intended in this country.

The changes to the mutual assistance act will give judges discretionary power to refuse to register a foreign order if it is in conflict with the interests of justice to do so and allows them to refuse to hear an application for the registration on an ex parte basis. By articulating the overarching purpose of subdivision A, this amendment also provides assistance to judicial authorities in their interpretation of these provisions, which provide a comprehensive scheme for facilitating international cooperation in the registration and enforcement of foreign orders in Australia. As it stands, without this amendment there is a standstill in the processing of many criminal cases which involve property to the value of many hundreds of millions of dollars in this country. One such example involves the United Kingdom authorities. Despite their request for the registration of orders from the proceeds of pension fraud and share fraud to the value of tens of millions of dollars, under the current legislation and the decision of the High Court, Australia has not yet been able to proceed on these requests. Without the passage of this bill, there will likely be further delays in the registering of foreign orders. As a result of this loophole in our system there is already a risk that these assets will be moved offshore. They will be moved offshore as proceeds of crime to reward those who undertake criminal endeavours and, more importantly, will be available to be reinvested in future criminal activity.

For too long criminals have been under the impression that, if they hide their assets abroad, they will escape the notice of the authorities. This amendment bill makes it abundantly clear that no criminal act will be tolerated and that law enforcement is not limited to the bounds of any one nation. It lets the criminals know that Australia unequivocally supports the foreign courts when it comes to confiscation, restraining and pecuniary orders of stolen assets. I am very proud to support this amendment bill and I commend it to the House.