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Monday, 23 September 2002
Page: 4603


Senator HARRIS (1:48 PM) —Speaking in support of the Democrats amendment to this bill, I know that many aspects of this bill have raised such enormous concern among the public that it is difficult to know which sections of the bill to focus on. Let me put clearly on the record that One Nation is of the opinion that this bill is so badly flawed that its intent is un-Australian in the extreme, in that there is no way under this bill that a person who has been wrongfully deprived of their assets has a process of redress. This is actually an indictment upon this place. Nobody—myself included—supports the proposal that a person can have a beneficial gain from crime. We do not oppose the government on that issue.

If the government were to amend this bill in such a way that any person who was a non-Australian citizen had the particular implications of this legislation brought upon them because that person had carried out an illegal activity within Australia or upon an Australian citizen, we would support the bill with some reservation. But the bill in its present form has implications for the Australian people that I do not believe I have seen the equivalent of in the three years that I have been in this place.

We only have to look at the list of submissions and concerns that have been brought before the committee in relation to this bill to understand the public concern. These submissions come from eminent judicial people. There is one from the Rt Hon. Sir Harry Gibbs, who raises enormous concerns—particularly in relation to clause 17 of the bill, which requires a restraining order to be made in respect of the property of a person proposed to be charged with an indictable offence. This is not restricted to the serious offences with which, one assumes, the bill is primarily concerned. To prevent the section applying to indictable offences which it would not be appropriate for it to apply to, it might be suggested that the section should give the court discretion to make an order rather than impose a duty on it to do so.

There we have a second issue in relation to the bill. The bill itself largely gives the judiciary no room whatsoever to move. It prescribes what the judiciary will do, and it is my belief that it is inappropriate for this place, because our entire democracy is based upon the separation of powers—the ability of the parliament to make laws and then the ability of the judiciary to administer them without any impedient whatsoever. But this piece of legislation is mandating what the judiciary must do. It takes away the discretion of the judiciary.

Coming back to the Democrats' amendment, I say that there should not be double jeopardy in relation to this legislation. If a person is brought before a court in a criminal matter and they subsequently prove themselves innocent, the government ought not have any right to then use the civil forfeiture procedures to asset-strip that person without either appealing the decision of the court and providing the court with further evidence that proves there is a connection between that person and the actual crime that they are being charged with or, in relation to the property, showing that there is clear linkage between that person, the property and a criminal activity.

If the government is going to have the audacity to stand in this place and tell us today that there are people who have the ability to purchase a property in Australia without the government being able to trace where those funds come from then the government itself is indicating to the Australian people that there is a flaw—a monumental failure— in the government's own procedures. We have the ability today to digitise a person's voice. I might remind honourable senators that every one of their voices in this place is digitised. So whether they pick up their mobile phone, the phone in their office, a friend's phone or a public phone, the computer system that analyses the telephone can immediately identify that person—just like that! Is the government going to have the audacity to tell us that it cannot track where the funds to buy a property in this country are coming from? It is defeating its own argument, or it is clearly saying to the Australian people, `We have no way of proving what is happening.' I do not believe that is the case.

It is absolutely preposterous for the government to say, `We will take you to court and if you prove your innocence then we will use civil forfeiture to asset-strip you.' In my speech in the second reading debate, I raised the fact that in the United States it was proven beyond doubt that the authorities blatantly and grossly exceeded the abilities and the powers that they had there. We have reports from the United States that people have been pulled over on the side of the road and had their vehicles confiscated and seized under the American asset forfeiture laws. I say to everybody in this place: God help us if that happens here in Australia. It is unacceptable that in any society for any reason whatsoever it could even be implied that our right of innocence until we are proven guilty should be reversed. That is one of the major issues in relation to this legislation. As the Democrats have so succinctly put it, not only is the government going to be able to double-dip but this legislation is actually going to reverse the onus of proof. Under our democracy, irrespective of what the charge is, I believe that we have the right to remain innocent until proven guilty. It is a basic right in this country. It is the government who should have to prove otherwise.

Progress reported.