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Wednesday, 24 June 2009
Page: 6964


Mr McCLELLAND (Attorney-General) (10:32 AM) —I move:

That this bill be now read a second time.

General introduction

Organised crime affects many areas of social and economic activity, inflicting substantial harm on the community, business and government.

It has been estimated to cost the Australian economy at least $15 billion each year. That is not $15 million; it is an estimated cost to the Australian economy of at least $15 billion each year.

In his inaugural national security statement, the Prime Minister, the Hon. Kevin Rudd, gave an assurance that the government would act to address the threat posed by organised criminal activity. The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 delivers on that assurance.

The security of Australia is the government’s highest priority, and maintaining that security and the safety and security of Australian citizens requires decisive action to target serious and organised crime.

It is important that we put strong laws in place to combat organised crime.

We need to target the profits of crime and remove the incentive for criminals to engage in organised criminal activity.

We also need to empower our law enforcement agencies to defeat the sophisticated methods used by those involved in organised criminal activity to avoid detection, often with the assistance of highly skilled professionals. Appropriate access to covert investigative tools, such as controlled operations, assumed identities and telecommunications interception, will assist police to investigate and disrupt criminal activities.

It is also vital to ensure offences extend to people who commit crimes as part of a group.

In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to a set of resolutions for a national response to organised crime.

This bill implements the Commonwealth’s commitment as part of the national response to enhance its legislation to combat organised crime by:

(1) strengthening criminal asset confiscation and targeting unexplained wealth;

(2) enhancing police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection;

(3) addressing the joint commission of criminal offences; and

(4) facilitating greater access to telecommunications interception for criminal organisation offences.

1. Strengthened criminal asset confiscation

The ability to trace, restrain and confiscate the benefits that criminals derive from their offences is a vital part of an effective justice system.

The bill will implement a range of measures to extend and enhance the Commonwealth confiscation regime. Several of these measures respond to the recommendations in the review of the Proceeds of Crime Act 2002 made by Mr Tom Sherman AO in 2006.

New unexplained wealth provisions will be a key addition to the Commonwealth criminal asset confiscation regime.

These provisions will target people who derive profit from crime and whose wealth exceeds the value of their lawful earnings.

In many cases, senior organised crime figures who organise and derive profit from crime are not linked directly to the commission of the offence. They may seek to distance themselves from the offence to avoid prosecution or confiscation action.

Unlike existing confiscation orders, unexplained wealth orders will not require proof of a link to the commission of a specific offence and in that sense they represent a quantum leap in terms of law enforcement strategy.

However, there must still be a connection between the unexplained wealth and criminal offences within the Commonwealth legislative power.

The bill will also provide for freezing orders that will prevent a financial institution from processing withdrawals from a specified account for a period of up to three days.

Sometimes, there is only a very short window between law enforcement uncovering the illegitimate assets of a criminal group and those assets being transferred to avoid confiscation.

The new freezing orders will ensure offenders cannot frustrate restraining orders by using the time it takes to obtain a restraining order to dissipate funds.

Freezing orders will be strictly limited in duration and application and can only be sought where there are reasonable grounds to suspect an account contains the proceeds of an offence. A person affected by a freezing order may also apply to have reasonable expenses excluded from the order.

The bill will also extend the non-conviction based confiscation regime to permit the restraint and forfeiture of instruments of serious offences without conviction, similar to the way the proceeds of crime can be confiscated also without conviction. Currently the proceeds of a wide variety of offences can be confiscated on a civil standard of proof, but instruments of indictable offences, other than in respect to terrorism offences, may only be confiscated where a person is actually convicted of the offence. The ability to confiscate instruments is of particular importance in money-laundering offences where cash is the instrument of the offence. It will need to be shown that the instrument of the offence was used or intended to be used in the commission of a serious offence. In that sense, there will still need to be established a causal connection.

The bill will simplify arrangements for legal aid commissions to recover costs incurred by people who have assets restrained under the Proceeds of Crime Act 2002.

It has always been intended that legal aid commissions be reimbursed for the provision of legal assistance to persons whose assets have been restrained under that act.

This is to ensure that all persons the subject of proceedings under the act would be able to seek appropriate legal advice from legal aid commissions without impacting adversely on other legal aid priorities.

The existing scheme, which requires legal aid commissions to recover legal costs directly from a person’s restrained assets, has proven complex and at times, subject to delay.

Under the new scheme, legal aid commissions will be able to recover legal costs incurred by a person with restrained assets directly from the confiscated assets account.

The Commonwealth will then recover the amount from the person who received the legal aid, up to the value of the restrained assets.

The bill will also improve other aspects of the existing confiscation regime, including by ensuring information obtained under the regime can be disclosed to agencies with functions under the act, which are generally law enforcement functions. The information may be provided if it will assist in the prevention, investigation or prosecution of criminal conduct.

2. Cross-border investigative powers

Organised crime does not respect borders, and it is vital that police are able to work across jurisdictions with the same ease.

The 2002 Leaders Summit on Terrorism and Multi-Jurisdictional Crime agreed that there should be a national set of laws for cross-border investigative powers.

Model laws for controlled operations, assumed identities, surveillance devices and witness identity protection were then endorsed by the Standing Committee of Attorneys-General in 2004.

A key aspect of the model laws is that they provide for the mutual recognition of authorisations and warrants issued in other jurisdictions.

This will enable more effective investigations across jurisdictions and reduce the risk of losing evidence. The availability of consistent sets of powers across jurisdictions also facilitates closer cooperation between law enforcement agencies.

The Commonwealth implemented model laws for the use of surveillance devices in 2004.

This bill implements the model laws for controlled operations, assumed identities and witness identity protection, replacing the existing regimes in the Crimes Act 1914.

In doing so, some modifications have been necessary to reflect, for example, the unique role of the Commonwealth for national security and the investigation of crimes with a foreign aspect.

Controlled operations

In undercover operations, law enforcement officers may be authorised to do certain things that would otherwise be illegal in order to obtain evidence of a serious offence.

For example, a shipment of drugs might be allowed to pass through border control in order to follow the trail to the buyers or distributors of those narcotics.

In these kinds of operations—called controlled operations—the authorised person is protected from criminal responsibility and indemnified against civil liability for their actions.

The admissibility of the evidence that is obtained is also preserved.

There are appropriate limits on this; controlled operations do not authorise conduct likely to cause death or serious injury or involve the commission of a sexual offence.

There are also strong accountability mechanisms in place to ensure that the exercise of these powers is publicly accountable.

The bill also responds to concerns arising from the High Court’s decision in Gedeon v Commissioner of the New South Wales Crime Commission.

Following that case, there is a real risk that there is insufficient protection for persons authorised under state or territory controlled operations laws who commit Commonwealth offences.

The new controlled operations regime will recognise corresponding state and territory laws—removing the need to seek a separate Commonwealth authorisation.

Further, the bill will provide for retrospective protection for evidence obtained from, and persons who participated in, validly authorised state or territory controlled operations.

Assumed identities

The use of assumed—or false—identities is an important law enforcement tool allowing operatives to protect their real identity and infiltrate criminal groups, often at great personal risk.

Authorised persons can make requests to government and non-government agencies to obtain evidence of an assumed identity—for example, a fictitious drivers licence or fictitious credit card.

Persons using assumed identities would be protected from criminal liability arising only from their authorised use of that identity.

For example, a person using a fake drivers licence would not be prosecuted for having a fake identification or drivers licence but most certainly could still be prosecuted for dangerous driving or another traffic offence.

Further, a person who is authorised to acquire a fake drivers licence, but is not qualified to drive, most certainly will not be authorised to drive a vehicle.

The new assumed identities regime will recognise things done in relation to an assumed identity authorised, similarly to as I have indicated in respect of controlled operations, under a corresponding state or territory law.

The safeguards and accountability measures for the new assumed identities regime in some cases exceed the protections provided in the model laws.

For example, a person who has an assumed identity will commit an offence if he or she fails to return evidence of an assumed identity when requested to do so.

This will act as a deterrent to those who may seek to use their false identity after the authorisation has ceased.

Witness identity protection

The bill also puts in place a comprehensive scheme that protects the safety of witnesses who are undercover operatives and the integrity of operations in a transparent and accountable way. This will ensure that participants in controlled operations and authorised users of assumed identities are not exposed in court proceedings.

Undercover operatives may be required to give evidence in legal proceedings.

The witness identity protection regime will allow an operative to give evidence using a pseudonym.

For example, the operative could appear in court under his or her assumed identity.

In some cases, it may be necessary to protect the operative’s true identity to ensure their safety or to avoid prejudicing current or future investigations or security activity.

While this is clearly in the public interest, this must be balanced against the right of an accused person to a fair trial.

The witness is not anonymous or secret—defence counsel can still cross-examine them and test their credibility.

The operative is still bound to tell the truth.

The operative will need to declare matters relevant to their credibility, for example, any prior convictions or allegations of professional misconduct.

This information is made available to defence counsel as part of the witness identity protection certificate.

The court may allow defence counsel to ask questions which may reveal the witness’s true identity where there are compelling circumstances and it is established that it is in the interests of justice to do so.

The court will also be able to require the real identity of the witness to be disclosed to the court.

3. Joint commission

In terms of the undertaking of offences by way of a joint commission of offence with others, the bill introduces a new joint commission provision which is targeted at offenders who commit crimes in organised groups, and hence the relevance to serious and organised crime. This provision builds upon the common law principle of ‘joint criminal enterprise’.

If a group of two or more offenders agree to commit an offence together, the effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group.

Joint commission targets members of organised groups who divide criminal activity between them. If, for example, three offenders agree to import heroin into Australia and two of the offenders each bring in 750 grams of heroin, all three offenders can be charged with importing a commercial quantity under the joint enterprise provisions.

4. Telecommunications interception

The ability for law enforcement to intercept telecommunications is integral to the fight against organised crime.

Telecommunications interception warrants are already available for the investigation of serious offences of a certain type or which carry a penalty usually of more than seven years imprisonment, although there are some exceptions.

The penalties for organised crime association and facilitation offences that have been introduced in state legislatures, in particular at this stage New South Wales and South Australia, are generally lower and therefore telecommunications interception cannot currently be used to investigate them.

However, in order to fight organised crime we must be able to target those who support the activities of criminal groups.

The bill will make telecommunications interception available for the investigation of offences relating to an individual’s involvement in serious and organised crime in those states that have that legislation in place currently and those that in turn subsequently introduce such legislation on a similar basis or to similar effect.

This will be limited to the individual’s involvement in criminal organisations committing offences that are punishable by at least three years imprisonment.

The amendments will allow law enforcement agencies to access stored communications such as emails and text messages, as well as real-time interception of targets’ communications.

This limit recognises the invasive nature of telecommunications interception and seeks to balance the need for operational effectiveness.

These amendments will ensure that law enforcement agencies are equipped with the necessary tools to effectively combat organised crime.

Summary

In conclusion, this bill contains a range of measures to comprehensively target serious and organised crime through enhanced asset confiscation, the introduction of joint commission and improving the ability of law enforcement agencies to conduct investigations.

Together these measures represent a significant advance on the tools available in the fight against serious and organised crime. They are an important part of this government’s commitment to keeping Australia safe and secure.

Could I specifically acknowledge the considerable work undertaken by the recently retired Minister for Home Affairs, the Hon. Bob Debus, and also the current Minister for Home Affairs. Could I also acknowledge within the government ranks a significant contribution made by Senator Hutchins and the member for Werriwa. I am aware in relation to members opposite that their parliamentary secretary, who is in the House, has also contributed to discussing issues in this House. In addition, I acknowledge the presence of the shadow minister in the House.

This is very important legislation. It represents a quantum leap in the capacity to fight organised crime. It is a two-pronged approach: it increases the capability of law enforcement agencies to pursue organised criminals, increasing the risk of apprehension; and it places an extreme cost on taking that risk—namely, confiscation of the proceeds of criminal activity.

I commend this very important bill to the House.

Debate (on motion by Mr Billson) adjourned.


Mr Billson —My congratulations to the minister.