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Tuesday, 27 October 2009
Page: 11132


Mr HAYES (6:54 PM) —I rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. On 4 December last year, the Prime Minister made Australia’s first national security statement to the House. He said:

Organised crime more broadly is a growing concern for Australia, one the government is determined to combat.

To put that in context, the Australian Crime Commission—and I have the privilege of being a member of  the joint parliamentary oversight body, the Joint Committee on the Australian Crime Commission—estimates that Australia loses in the vicinity of $10 billion each year to organised crime. That is essentially the backdrop to the Prime Minister’s comment about the need to combat organised crime. He went on to say:

The government will develop two initiatives in the related areas of border management and serious and organised crime. We will strengthen border management by simplifying arrangements and improving coordination across all agencies. Second, we will clearly define the role of the Commonwealth in combating serious and organised crime and enhance coordination among Commonwealth agencies.

He spoke about us being very fortunate having ‘highly capable police services’, saying:

We have highly capable police services which respond to a spectrum of challenges, from threats to public safety to terrorism, and emergency response organisations that protect the community in our most vulnerable times.

The Prime Minister laid out the platform of where we are going to act in terms of our fight against organised crime in the security statement. He said we were going to be tough on crime and that we were going to give to those respected people on the thin blue line, who protect our society, the tools they need to be able to get on and do their job more effectively.

I rarely let an opportunity to personally acknowledge the contributions of our men and women in uniform go by. They are involved in the fight on our behalf against the global onslaught of organised crime. I think my respect for the police is a sentiment that is shared by everyone in this House. As a matter of fact, it was only on the 29th of last month that we had Police Remembrance Day, where we recognise the men and women who have paid the ultimate sacrifice in protecting our community. There are all those vacant plaques at the national police memorial, and we know, regrettably, they will have people’s names on them in due course. It is a dangerous occupation, and we are extremely grateful to the people who have that special sort of courage and wear the uniform of a police officer.

I had the opportunity only last week to address the Police Association of South Australia’s annual conference, entitled ‘In harm’s way’, and I in fact talked to them about this very bill before the House. I take this opportunity to congratulate Mark Carroll, the president of the South Australian Police Association, on a very well run conference. As you would expect, it looked at industrial relations issues that involved his members, but it also had a very clear focus on the professional issues involved in contemporary policing, including the need for modern tools and equipment to combat crime.

At any time, this country faces a threat from a wide range of different sources to our people, our institutions and our economy; even our technologies are placed at risk by organised crime. Organised crime clearly affects many areas of social and economic activity, inflicting substantial harm on the community, business and indeed government. In contemporary law enforcement, whilst it is politically palatable for some, it is overly simplistic to evaluate our police services simply on arrest rates. That really misses the mark.

The fact that every time a crime is committed, there is a victim—a member of the community, or the community itself, is being harmed. As we are all aware, an arrest and subsequent conviction does not undo the harm that is inflicted on a victim. In protecting our communities, we should be doing more to prevent crime and, in terms of criminal enterprise itself, and to disrupt its activities. To achieve this we need to develop consistent and common strategies that attack those underpinning elements of organised crime. Therefore, it is essential to actually look at the business model of crime itself. There is no doubt in my mind that the increasingly sophisticated and aggressive nature of organised crime requires from us, the legislator, a tough response. Our communities expect nothing less from us.

It is important that we have strong, consistent and effective laws to combat serious and organised crime across the nation. Specifically, the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 will implement reforms to the Commonwealth laws as part of a comprehensive national response to combating serious and organised crime. This reform is designed to equip our police with the tools they need to defeat the refined methods used by modern day criminals. We are not talking about thugs in balaclavas—the increasing sophistication of organised crime in this country is astronomical. They certainly can acquire the assets they do not have. We must make sure that our police are not fighting crime on our behalf with both hands tied behind their backs. We have to level the playing field. If people tell you that we are winning the fight on crime, they are wrong. Organised crime is developing at a significant pace and we must be there, taking sufficient steps to combat its further development.

The bill as introduced focuses on the confiscation of the proceeds of crime whilst strengthening the national law enforcement coordination capability. It is a two-pronged approach. Firstly, you remove the profitability of a criminal activity and, secondly, you increase the likelihood of criminals being caught. The bill seeks to implement measures agreed to between the Commonwealth, states and territories and will strengthen the criminal asset confiscation regimes; introduce the new provisions of unexplained wealth; enhance police power to investigate organised crime, including model cross-border investigation powers through controlled operations, assumed identities and witness identity protection; extend criminal liability for all individuals who jointly commit an offence; and broaden the list of offences where telecommunication interception powers will be available to law enforcement agencies.

Fundamental to this approach is the introduction of the new unexplained wealth provisions. This is a new approach—one which has been developed in Western Australia under their state laws and, indeed, it has been introduced in a more refined way in the Northern Territory. It is one that attacks the business model that underpins crime. Crime is there with a profit motive and therefore this approach is designed to attack that profit motive and to put at risk the greater element of finances behind not only the single criminal enterprise but all assets that the criminal might have in their possession. This is achieved by also having a reverse onus of proof. Under this legislation, the onus of proof will be on the accused—they will need substantiate that their assets were gained by legal means. That is pretty significant because what it does for serious and organised crime is to put at risk more than just the proceeds of the crime itself. That will be a key component to these reforms.

These provisions will target people who profit from crime and those whose wealth exceeds the value of their lawful earnings. In order to prevent and disrupt crime we must address various aspects that drive criminal enterprises. Central to this is to comprehend that most criminals are by nature business people. I do not make any apology for putting it that way—if you look at how this bill is going to act against criminal enterprise you must look at those who operate these enterprises. They are clearly businesses. Most assuredly they are illegal ventures; nevertheless, they are businesses with a very clear and distinct profit motive. They seek a return on capital, and they will seek to operate in areas of least resistance. They will seek to maximise the return on their investment. In many cases, people who organise and profit from crime are not directly linked to the commission of the offence. They will seek to distance themselves from the crime itself in order to avoid prosecution or confiscation actions.

We have all heard the stories of profits from a particular criminal enterprise being divested through various forms, either through family or into other areas of enterprise. Under these provisions, they can be tracked and people will be held accountable for what they have accumulated. It is then with the reverse onus of proof that it is up to them when called upon in accordance with the law to substantiate the accumulation of their wealth. However, unlike the confiscation these new and unexplained wealth orders will not require proof of a link to the commission of a specific offence. Also, the significance as stated earlier, is that with the unexplained wealth provision there will be a clear and effective reverse onus of proof. Vitally, these measures will target the perpetrators and also the profits of organised crime and will provide police with the tools they need to combat an increasingly sophisticated methods used by organised criminal syndicates.

As I said at the beginning of this speech, I am proud to be a member of the parliamentary joint committee oversighting the Australian Crime Commission. It is in that capacity that I can advise the House that the committee has recently—over the last 12 months or so—held a review of legislative arrangements to effectively outlaw various elements of serious and organised crime groups.

During that inquiry we travelled across the country. We visited most police commissioners and met with other senior officers, who also gave evidence to our hearings. I have to say I was a little disappointed that, although the committee had access to the leaders of all the police forces in the country, we struggled to get a common position from our chief law enforcement officers. As a matter of fact, it was left to the Police Federation of Australia, which represents 52,000 sworn police officers across the nation, to put a very clear, unambiguous position to our inquiry. The PFA called upon the committee to recommend the development of unexplained wealth legislation as a key measure in attacking organised crime. This is evidence of the importance of a national policing voice and I again congratulate the PFA on being able to achieve that position and also in being able to advocate on behalf of all police officers in this country.

During the course of the inquiry the committee specifically examined a number of international legislative arrangements to assess their effectiveness in the fight against serious and organised crime. As a consequence, a delegation of the committee took evidence from jurisdictions in North America, the United Kingdom and Europe. Interestingly, the committee’s report and findings with respect to the legislative responses of international jurisdictions to serious and organised crime were tabled in the parliament in June this year. It is worth noting that this report enjoys bipartisan support—as does, I hope, this piece of legislation.

I would like now to discuss with you the five key findings of the delegation’s report with respect to tackling serious and organised crime. Consistent across the globe was the view that it was important to follow the money trail when addressing organised crime; that there was a need for information sharing and greater cooperation amongst law enforcement and other agencies, both within governments and between governments; that there were benefits to be gained in developing measures to prevent organised crime, rather than simply reacting to it; that political will plays a critical role in combating serious and organised crime; and that there was a need for governments to take a holistic approach to tackling organised crime, through a package of legislative and administrative arrangements.

They were the key and consistent positions that the committee heard, not only across Australian jurisdictions but across international jurisdictions. I think they are very relevant in terms of our tough approach in combating organised crime. From the international experience it was clear that law enforcement strategies which target the business model, including financial and material assets of organised crime, were crucial for disrupting criminal activity.

Mr Raffaele Grassi, from the Italian National Police, put it best when he told the delegation that criminal ‘members are prepared to spend time in prison, but to take their assets is to really harm these individuals’. I have long been attracted to the concept of using unexplained wealth as a means to remove the financial incentives associated with organised crime, and whilst this will challenge some aspects of individual liberties my position has always been that we must, first and foremost, do what is necessary to protect our community. If, for whatever reason, organised crime is allowed to flourish it will undoubtedly have a devastating impact on our people, our community and our economy. The security of the nation and its people must remain our highest priority.

That brings me back, in conclusion, to what the Prime Minister had to say on 4 December last year. He committed this government to introducing measures designed to combat serious and organised crime. He committed to developing measures to empower our police with the tools that they need to act on our behalf to protect our communities in respect of serious and organised crime. The legislation before the House, the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, does precisely that. It has the support of the state and territory governments and it will now lay the benchmark in terms of attacking organised crime by using unexplained wealth as a means of addressing this scourge on our society.

We have a responsibility to do that. As I have said, I know this will intrude on various perceived liberties of individuals—there is no question about that—therefore various safeguards have been built in to ensure that, where appropriate, those liberties are suitably protected. If people think that just because we are in the 21st century we are winning the fight against crime, it is time to think again. We need to have the tools necessary to compete with and break serious and organised crime enterprises. That is what this legislation will do. It is designed, unashamedly, to be tough—but only to protect our community. On that note I commend the legislation to the House.