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Thursday, 30 April 1987
Page: 2318


Mr LIONEL BOWEN (Attorney-General)(4.59) —I move:

That the Bill be now read a second time.

This Bill was first introduced on 22 October 1986. The Bill is now being reintroduced in a significantly amended form. The most important of these amendments enables Australia to provide, and request, assistance concerning freezing and forfeiture of the proceeds of crime. I will refer later in more detail to this aspect of the Bill.

This Bill will provide a legislative basis for Australia to enter into arrangements with other countries whereby it can request and grant assistance in criminal matters. The assistance will relate both to the investigation and prosecution of crime. This Bill represents a significant initiative of this Government in its fight against organised and international crime.

At the conclusion of the Special Premiers Conference in April 1985 the Prime Minister committed the Government to pursuing actively opportunities for increased co-operation with other countries in combating crime.

The final report of the Royal Commission into the Activities of the Nugan Hand Group which was presented on 12 July 1985 recommended, inter alia, that the Commonwealth Government give consideration to upgrading the priority accorded to the establishment of modern mutual assistance agreements. At the seventh United Nations Crime Congress in Milan in 1985 Australia was instrumental in proposing, and having unanimously carried, a resolution calling for greater international co-operation in combating organised crime and urging all governments to give urgent attention to the development of mutual assistance arrangements.

This Bill in particular will enable Australia, in co-operation with other countries, to deprive criminals of off-shore havens in which to hide their profits. My discussions overseas, particularly in the United States of America and Switzerland, have completely confirmed the need for legislation in this area if Australia is to carry out effectively its international responsibilities in combating crime. I was impressed in the course of those discussions with the number of countries which expressed interest in the early completion of mutual assistance arrangements with Australia.

In early 1985 I established a task force to extend and modernise Australia's extradition arrangements with other countries. In that short period I have signed 14 extradition treaties. Negotiations have also been opened up with another 27 countries. The task force has also commenced the process of developing mutual assistance arrangements with other countries based on this Bill. I would like to take this opportunity to express my appreciation of the tremendous work done by the task force, including officers of my Department and the Department of Foreign Affairs, in the development of legislation as well as treaties and other arrangements. The work of the task force has resulted in a treaty-making process without precedent in this country's history. I am confident that the good work of the task force will continue.

This Bill has been the subject of extensive consultation with the States and the Northern Territory. The success of this proposed legislation, and the international arrangements for mutual assistance, will depend heavily on close co-operation and understanding between the Commonwealth and the States. The Bill also ensures that rights of persons are properly protected in accordance with Australian standards of justice. The Bill reflects the principles of the Commonwealth Scheme of Mutual Assistance in Criminal Matters agreed at the Commonwealth Law Ministers meeting in Harare in July 1986.

I shall now turn to the principal features of the Bill. Clause 5 of the Bill makes it clear that its object is to facilitate the provision and obtaining by Australia of international assistance in criminal matters in areas which include:

(a) The obtaining of evidence, documents and other articles;

(b) the provision of documents and other records;

(c) the location and identification of witnesses or suspects;

(d) the execution of requests for search and seizure;

(e) the making of arrangements for persons to give evidence or assist in investigations;

(f) the forfeiture or confiscation of property in respect of offences;

(g) the recovery of pecuniary penalties in respect of offences;

(h) the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated or that may be needed to satisfy pecuniary penalties imposed, in respect of offences;

(i) the location of property that may be forfeited, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences; and

(j) the service of documents.

The Bill's real function is to provide a legislative basis for Australia to honour the obligations it will be assuming in treaties and arrangements thereby ensuring that other countries will honour their obligations to Australia.

Clause 7 of the Bill provides that the Act may be applied to a foreign country specified in the regulations. Clause 8 is a particularly important clause in that it sets out circumstances in which the Attorney-General can refuse assistance. These exceptions to the provision of assistance are designed to ensure that national and State interests are safeguarded and that no injustice or oppression is caused to individuals. The substantive parts of the Bill also reflect the concern that Australia should not, in responding to a foreign request for assistance, unfairly disadvantage any individual.

Part II of the Bill empowers the Attorney-General to authorise a magistrate in Australia to take evidence and have documents and articles produced for transmission to a foreign country for use in proceedings in that country. The person to whom the foreign proceedings relate is entitled to be represented at the hearing in Australia as is any other person giving evidence or producing documents or other articles at the hearing. The relevant authority of the foreign country is also entitled to be represented.

Part III of the Bill deals with search and seizure at the request of foreign countries. The foreign country must specify the reasonable grounds which it has for believing that a thing which is relevant to a proceeding or investigation involving a serious offence against the law of that country is located in Australia. A search warrant may not issue unless the foreign offence carries a maximum penalty of at least 12 months imprisonment.

Part IV of the Bill deals with arrangements for persons and prisoners to travel to a foreign country at the country's request or to Australia at Australia's request to give evidence in a criminal proceeding or to assist a criminal investigation.

Most serious organised crime has international dimensions. It is accordingly vital that Australia have arrangements whereby persons overseas, whether prisoners or not, can be transferred to Australia to give evidence or assist investigations. Safeguards are built into the procedures established. For example, the person is entitled to immunity from prosecution both in respect of offences allegedly committed prior to departure from the foreign country to travel to Australia to give evidence or assist an investigation and also in respect of the evidence he or she gives except for perjury.

The Bill will enable Australia to ease significantly the task of foreign investigation and prosecution agencies in cases where crucial evidence or witnesses are in Australia. Australia will also benefit by being able to make requests for similar assistance pursuant to the arrangements it will be entering into. For example Australia will be able to seek by compulsory process access to banking and other financial records in foreign countries.

It is vital that Australia be able to give effect to foreign forfeiture and confiscation orders in relation to the proceeds of overseas criminal activity where those proceeds are located in Australia. In turn it is also vital that Australia be able to seek the forfeiture and confiscation of the proceeds of crime committed in Australia where the proceeds are found overseas. The proceeds of criminal activity, regardless of where found, should be denied to those persons who have obtained them and hopefully returned to the society which was a victim of the criminal conduct to which those proceedings relate.

The major amendment to the form of the Bill in which it was originally introduced into the House on 22 October 1986 is the addition of a new Part VI concerning the proceeds of crime. This Part will link in to the provisions of the Proceeds of Crime Bill 1987 and permit, at the international level, forfeiture and confiscation by Australia at the request of foreign countries and vice versa.

Part VII of the Bill provides for service of foreign criminal process in Australia. The Part also contemplates Australian criminal process will in turn be able to served in a foreign country.

The Government attaches great importance to development of a comprehensive international framework of mutual assistance treaties and arrangements. Major crime is becoming increasingly international in scope. It is imperative that greater international co-operation and assistance be introduced into the investigation and prosecution processes to enable major criminal suspects to be brought to justice. This Bill provides the legislative backing for Australia to enter into these international arrangements.

While it is not possible to estimate the resource and cost implications of this Bill it is clear that Australia will derive considerable benefit from assistance from other countries. I should mention in this regard that Australia has already received significant assistance from a number of foreign countries. I mention in particular Switzerland where significant funds associated with Australian narcotics trafficking have been frozen. However, to extend and improve this kind of assistance Australia must be in a position to extend assistance to other countries. The cost of providing that assistance will be at least offset, and probably outweighed, by the value of the assistance Australia receives. I commend the Bill to the House, and I present the explanatory memorandum to the Bill.

Debate (on motion by Mr Spender) adjourned.