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Monday, 11 May 1987
Page: 2935


Mr SPENDER(6.22) —The measures in the Mutual Assistance in Criminal Matters Bill 1987 and the Mutual Assistance in Criminal Matters (Consequential Amendments) Bill 1987, though long delayed, are welcome. They recognise the truly international character of organised crime. The purpose of the Bill may be stated in these terms: The legislation is to provide a basis for Australia to enter into arrangements with other countries whereby it can request and grant assistance in criminal matters. The Bill will form that legislative basis. It provides for assistance to be granted and received in respect of the investigation and prosecution of crime and the recovery of assets, including money, obtained as a result of crime. At present international assistance is available to Australia only informally through Interpol.

The Bill specifies the nature and methods of obtaining assistance from Australia in matters by foreign countries. In contrast, the types of assistance available to Australia from foreign countries are stated in broad terms only. The detail of the reciprocal assistance measures will depend on the domestic legislation of each foreign country with which we deal.

The spread of serious organised crime in our society and throughout the world cannot be doubted. Organised crime is entrenched in our society. We have had a number of major investigations, carried out by royal commissions, into organised crime. The National Crime Authority has been established. Everywhere there are indications of the growth of organised crime and of the concern that people have about its growth and about its strength. Its growth reflects the times. Crime does not stand still, and organised crime in particular does not stand still. There is no mystery to the expression `organised crime'. What does it mean? It means crime run as a business. Criminals are in the business of plundering others for profit. Organised criminals do it in a far more organised way than was the case in the old days when things seemed to be so much simpler. There is a very uneasy feeling that the criminals are winning.

I will give just one example from the report of the Australian Police Ministers Council for 1984-85 which was tabled a few months ago in the Parliament. It referred to the operations of a criminal syndicate. This was said in relation to the effectiveness of the Australian Bureau of Criminal Intelligence:

A principal ABCI project identified a syndicate criminal organisation with international connections. At this stage of its development its primary source of income is the illicit drug industry but it is penetrating legitimate business and commerce with the funds generated by such illegal activity. The annual income of this group, derived from local marihuana plantations alone, has been conservatively estimated to be in excess of $550 million. The organisation resorts to violence including murder or suspected murders, 3 of which have occurred overseas. The organisation remains a continuing threat to Australian society despite 270 arrests by Australian Police Forces.

That is but one example of the problems this society confronts. Some of the salient features and the workings of organised crime that are relevant to this Bill are: First, the interstate and international nature of its activities; second, the use of modern communications, of travel and the telephone-that means of instant communication which is used by criminals for setting up and carrying out criminal enterprises; third, reinvestment of the proceeds of organised crime in legitimate business activities; and, fourth, the corruption of police and of public officials. The destructive effects of organised crime are all too plain. I will say nothing more about them.

I will now say something about some of the deficiencies of this Government's approach to organised crime, which has been marked by a great deal of rhetoric and a complete absence of any strategic plan. Let me list some of those deficiencies. The first relates to criminal statistics. There is no system for the national collection of criminal statistics. How are we to deal with organised crime if we have no means of gauging the dimensions of the problem, if we have no system of national statistics that will enable us to analyse and to correlate criminal activities?

The next deficiency relates to illegal betting. The Government has not even attempted to grapple with the problem of illegal betting. Let me remind honourable members that illegal betting is not a glamorous back street business. It is a highly organised form of crime and those involved in it make use of Telecom Australia as an essential part of their activities. Without Telecom, illegal betting, starting price betting, would virtually disappear. Yet nothing has been done by this Government to bring in offences under the telecommunications power so that those who engage in the use of Telecom facilities for illegal betting activity would be subject to heavy penalties. It is a perfectly obvious response and yet it has not apparently been thought of. Certainly, we have never heard of it.

The next deficiency relates to the National Crime Authority, the principal Commonwealth investigative body, which has no power to investigate illegal SP betting. In part that is due to the fact that the National Crime Authority has a limitation which is fixed by reference to the amount of punishment that may be inflicted. Ironically most illegal betting activities, even though they are such an important part of organised crime, are subject to fairly minor penalties.

Sitting suspended from 6.30 to 8 p.m.


Mr SPENDER —Before the suspension of the sitting I was outlining some of the deficiencies in the Government's approach to organised crime. I pick up with the Australian Bureau of Criminal Intelligence, a body of great importance in the investigation of organised crime, in gathering intelligence concerning organised crime; yet it does not have sufficient resources to fulfil its charter. That is a very basic deficiency. If one looks to the evidence for what I have just said, it is to be found in the annual report of the Australian Police Ministers Council to which I referred a short time ago.

I turn next to the National Crime Authority. This body does not have adequate powers to investigate organised crime. It may investigate offences or suspected offences against State laws only with the authority of the inter-governmental committee. There is a potential for a political veto. All of us should want to get rid of that potential, but it is entrenched in the legislation. That arises because there is a power in a State which is to be subjected to an investigation, or the possibility of an investigation, by the National Crime Authority, using the coercive powers, to exercise a veto against that investigation.

The Australian Taxation Office suffers from deficiencies and inefficiencies in the investigation of tax evasion which have been examined by some of those who have had to look at the operation of that Office, how it conducts its affairs and how it goes about the business of detection and prosecution of tax evasion. Law enforcement agencies do not have adequate access to taxation information that is relevant to their investigations. This has been the subject of a number of recommendations. The public interest is a very great one in making sure that law enforcement authorities have access, with proper safeguards, to taxation information for the purposes of the investigation and prosecution of serious crime. This is a course which has been resisted by the Taxation Office. It is one that we need to embrace because, by giving access under proper safeguards to taxation information, we will facilitate the pursuit of criminal offences and the convictions of those guilty of them. The last deficiency is that the Government does not appear to be able to keep an effective monitor of the resources needed by all Federal agencies involved in law enforcement.

Those are but a few of the deficiencies in the Government's approach to organised crime-an approach which has been high on publicity and low on co-ordination of effort. Let me say that this is a good Bill and we welcome it. Let me turn to it. The purpose of the legislation, as I outlined earlier, was to give to other countries, and for Australia to get, international assistance in criminal matters. Clause 5 lays down the objects of the Bill. They are these:

The object of this Act is to facilitate the provision and obtaining by Australia of international assistance in criminal matters, including:

(a) the obtaining of evidence, documents or 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 investigations;

(f) the forfeiture of 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;

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

(k) the service of documents.

If one looks at some of the principal features of the Bill, one sees these elements: First, the Bill does not limit the provision of obtaining of assistance otherwise than in accordance with the legislation itself. Next, in dealing with the case of requests by foreign countries, assistance can be given only to those foreign countries which are specified in regulations made under the Bill, or under the Act, as it will be. The Attorney- General has power to refuse assistance under clause 8 which provides that a request of a foreign country for assistance under the Act shall be refused if, in the opinion of the Attorney-General, it relates or gives rise to one of a number of disabling grounds, such as the prosecution or punishment of a person for an offence that is of a political character. Under clause 8 the Attorney-General may refuse assistance if one of a number of disabling grounds is, in his opinion, established, such as, the request relates to the prosecution of punishment of a person in respect of an act or omission that, if it had occurred in Australia, would not have constituted an offence against Australia law. A foreign country which seeks assistance from Australia must substantiate its request.

Provision is made for evidence to be taken in Australia and for documents to be produced in Australia. That is done by clause 13, which is concerned with a magistrate's position when a magistrate is taking, amongst other things, evidence. Under clause 13 (4) the magistrate conducting the proceeding, under an earlier sub-clause, may permit the person to whom the proceedings in the foreign country relates to have legal representation at the proceedings before the magistrate. I have omitted certain parts of that provision, but the point is that the magistrate is to have a discretion as to whether a person to whom the proceeding in the foreign country relates is to have the right of legal representation.

I have no doubt that a lot of careful thought was given to this provision. But there is a very basic rule which applies in Australia, that is, that a person who is accused of a crime and against whom evidence is being tendered has an opportunity to be present and to have representation. True it is that we do not expect that a person, in cases in which a person has been proceeded against in a foreign country, should be present in Australia when evidence is being taken. But it is a marked departure from our approach that there should not be a right for that person to have legal representation. For example, if evidence is taken overseas on commission in respect of a matter arising in Australia, a party to the proceeding is always entitled to be represented at the taking of the evidence. The reason is obvious. If oral evidence is taken, how can that be tested if the person to whom that oral evidence relates, a person who is the subject of a charge, does not have the opportunity to test that evidence by cross-examination? It appears to me that that is a cardinal defect in this area of the Bill. It is one that I have drawn to the attention of one of the Attorney-General's officers as I wanted him to consider it for the purposes of examining the prospect of an amendment to overcome the problem about which I am talking, since I believe that the Attorney-General is a person who likes to see the basic rules of our system preserved.

Continuing on with what may be done on behalf of foreign countries, search and seizure provisions are provided for so that documents and so on may be searched for and seized so they can be presented in evidence overseas or used for purposes relating to investigations. Also, there is a provision for the giving of evidence in foreign countries by prisoners in Australia. This is an important provision, as the intent is that if a prisoner in Australia can give relevant evidence in some foreign proceedings, so long as there are sufficient undertakings to protect that person whilst he is overseas, he or she should be made available to give evidence. But there is a problem, and it is this: Clause 26 (1) makes provision for a prisoner giving evidence overseas and states that the Attorney-General must be satisfied that the prisoner has consented to giving evidence in a foreign country.

Let us consider the realities. What will happen if a person in the iron hotel in Australia who is serving a 20-year sentence for a very serious criminal offence is able to give evidence which is directly relevant to criminal proceedings in another country, perhaps involving some old colleagues in the crime trade, and his assistance is sought? Do we really imagine that he will say: `That is nice. I would like a little trip. It would be pleasant to go to Britain, France or West Germany and give evidence'? Of course not. After all, people who end up in gaol on serious offences are not the most public spirited of citizens of this country.

I suggest to the Attorney-General (Mr Lionel Bowen) that if we persist with that provision, it will mean that the effectiveness of that part of the legislation will be nullified. That would be a great pity. I ask the Attorney-General to reconsider the question of a prisoner consenting to giving evidence overseas. As long as the rights of a prisoner are going to be safeguarded, as long as we can be certain that that is the case before he leaves the country, it seems to me that we should not say: `Do you want to go?'; what we should say is: `We have secured your position. No harm will befall you as a result of your going overseas and giving evidence, but go you will. As to what evidence you will give, that is something you must decide yourself'. Those matters should be redrawn. I ask the Attorney-General to think very carefully about those two provisions, although I have already had an explanation from his office as to the reasons they were drawn up as they were.

I now want to say something about delay. In our view, legislation of this kind should have been introduced a long time ago. When the Government was in opposition, it said a great deal about organised crime and about the record of the Fraser Government in that area. It was contemptuous of the work done by the Fraser Government although the Fraser Government set up the National Crime Commission which was the genesis of the National Crime Authority. We welcome the introduction of this Bill. It is a well drawn Bill and I commend those who had the task of drawing it up. It deals with a difficult field and deals with it in a way which makes it a very intelligible piece of legislation. The Attorney-General, when introducing the Bill, said that the legislation represented the implementation of the recommendations of Royal Commissioner Mr Justice Stewart, who inquired into the activities of the Nugan Hand Group and reported in mid-1985. It is bad enough that it has taken the Government, which has been riding the organised crime bandwagon, just on two years to bring in this legislation in its final form; but the need for updated mutual assistance legislation had been emphasised to the Government long before the Nugan Hand report. In fact, the legislation generally implements recommendations made by Mr Costigan and others four or more years ago.

Earlier I said that the Government lacked a strategic plan to combat organised crime. I repeat that it is plain that it does because, despite this Bill, and despite the Bill which we will debate later tonight which deals with the confiscation of criminal assets-which, again, is a well-drawn piece of legislation in a difficult area-we lack a planned comprehensive approach to combating organised crime. If severe and lasting damage is to be done to organised crime, it is essential that we have such a plan. It should include these elements: First, across the spectrum intelligence gathering to build a detailed picture of the activities of organised crime; secondly, analysis of the needs of all Federal agencies involved in law enforcement and adequacy or inadequacy of personnel, training and resources; thirdly, a planned upgrading of personnel, training and resources in those agencies; fourthly, co-ordination under a senior Minister of the work of all Federal agencies involved in law enforcement. Presently, law enforcement is scattered through different departments and agencies under different Ministers-for example, the Attorney-General, who has the conduct of the Crimes Act; the Minister for Industry, Technology and Commerce, who has the administration of the Customs Act; and the Minister for Social Security, who has to deal with welfare fraud. Fifthly, we need to have an urgent reappraisal of the many outstanding recommendations of royal commissioners and special prosecutors into organised crime for changes to laws and to law enforcement practices. A great deal of work has been done; a great deal of work has been neglected. The work should be analysed. The analysis should be made public so that we have a public statement of what the Government's position is on all outstanding recommendations of persons such as Mr Costigan, Mr Justice Stewart, Mr Redlich and others.

Lastly, I wish to refer to what Mr Pino Arlacci had to say in Mafia Business. Mr Arlacci was, and I believe still is, a member of the Italian Government's Anti-Mafia Commission. In his book, in which he examines the mafia and what he calls the mafia ethic and the spirit of capitalism, he concludes by giving some recommendations as to how we can deal with organisations such as the mafia. His concluding recommendation is to the effect that we might:

. . . draw up an international convention against large-scale crime. This would lay down the scope and aims of actions undertaken by individual States, and ensure that the struggle against crime was waged by forces as mobile and agile as those deployed by the enemy.

I believe that must be the next step.