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Tuesday, 27 October 2009
Page: 11136


Mr SIMPKINS (7:14 PM) —I appreciate the opportunity to make a contribution on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 because it has always been my belief that the strongest pressure on criminals needs to be applied, from residents on our streets keeping watch, right up to mandatory sentencing and such matters as are raised by this bill. From a personal perspective, I endorse strengthened criminal asset confiscation powers, the protection of witnesses in controlled operations, the wider use of telecommunications interception for offences involving criminal organisations and greater capacities in dealing with the joint commission of criminal offences.

This bill deals with the need to amend not only the Crimes Act 1914, the Criminal Code Act 1995 and the Telecommunications (Interceptions and Access) Act 1979 but also the Proceeds of Crime Act 2002. I would firstly like to deal with the bill as it relates to the Proceeds of Crime Act 2002. The POC Act was a great step forward in hitting criminals where it hurts: with the seizure of assets. The 2006 Sherman report outlined enhancements that were recommended by law enforcement agencies. In schedule 1 of this bill there is an unexplained wealth provision that will allow ‘prove it or lose it’ capacities for agencies in dealings with those who were not actually involved in the specific commission of the offence or offences. This will mean that those who may fund or support organised crime will still be liable to having their assets seized. Once an agency can demonstrate to a court reasonable grounds to suspect that a person’s wealth and assets exceed their lawfully acquired wealth and assets, that person can be summonsed to court to prove that their wealth is not derived from offences.

This bill also enhances the power of the police to investigate organised crime through implementing model laws for controlled operations, assumed identities and witness identity protection. It addresses the joint commission of criminal offences and facilitates greater access to telecommunications interception for criminal organisation offences. The schedule 1 changes on unexplained wealth are to amend the Proceeds of Crime Act 2002 in order to strengthen the Commonwealth criminal assets confiscation regime in chapter 2 of the act. Unexplained wealth orders are to target wealth that any person cannot prove that they have lawfully acquired.

The changes provided for in this bill have been influenced by the successful laws in Western Australia and the Northern Territory. It was in 2000 that Richard Court’s Liberal state government passed laws to allow the seizure and sale of assets used for or achieved by criminal activity. In 2008, the laws were widened so that properties where sex crimes had taken place and where the offender was linked to that property could be seized and sold. The Sunday Times recently reported that more than $840,000 had been generated by the sale of properties owned by two sex offenders. This money is returned to the community in grants. I think these actions are right and appropriate. I hope that the sale of such properties will continue to generate benefits for the community and in some albeit small way offset the material cost to society imposed by sex criminals. If only the social and personal damage done to victims could be offset in that way.

The amendments in schedule 2 are to introduce freezing orders to ensure that assets are not dispersed, to remove time limitations on orders, to provide for non-conviction based restraint and the forfeiture of instruments of serious crime, to enhance information sharing and to reimburse Legal Aid Commission legal costs from the Confiscated Assets Account. The purpose of these particular amendments is to improve the ability of law enforcement agencies to target organised crime figures who get the biggest financial benefit from offences but can rarely be linked to the commission of an offence.

I would in particular like to make comment on part 4 of the schedule, relating to the disclosure of information. It has long been my view that the sharing of information relating to criminal behaviour and obtained under the auspices of one act relevant to crime should be able to be disclosed to another agency that has investigation responsibilities, as well as being able to be used in proceedings under another act related to crime. As was identified in the Sherman report and as is noted in the explanatory memorandum to this bill, the New South Wales Supreme Court ruling in the Commonwealth DPP v Hatfield case in 2006 stated that information obtained in an examination under part 3-1 of the POC Act could not be disclosed for any other purpose. Clearly it was not intended that information obtained could only be used for dealing with the question of confiscation of property. Information obtained using other gathering powers may have also been at risk. The amendments in this bill will overcome that possibility and ensure that agencies will be able to share information obtained. This effectively ensures that the prevention and investigation of serious criminal offences will not be undermined.

The schedule 3 changes are there to implement model laws for controlled operations, assumed identities and witness identity protection. They are intended to prosecute multijurisdictional criminal activity, a type of crime which is becoming more common due to the sophistication of organised criminal groups and in particular those involved in terrorism or transnational crime, including drug trafficking. These model laws will aid the authorisations required for a single jurisdiction to be recognised in other jurisdictions.

In relation to schedule 3, I will say that during my time in the Australian Federal Police I was aware of a number of operations which were determined to be controlled operations. That was basically where a member of the AFP was required to assume a false identity and even engage in conduct that broke laws, all in the pursuit of evidence of a serious criminal offence. I would imagine that the number of controlled operations would be far greater now and the governance issues and guidelines would be far more stringent. There are risks involved with operating in this twilight zone of infiltration, investigation and the eventual application of justice. It requires strong safeguards, and I have every confidence that organisations such as the Australian Federal Police have the governance measures and the adherence to legislation to carry out these important roles.

To go back to my time in the Federal Police, when I worked in Sydney I met a serving AFP officer who, as part of a controlled operation, knew Sallie-Anne Huckstepp very well. She was a prostitute and drug addict. Her name is somewhat notorious as she was murdered in 1986 by the underworld figure Arthur ‘Neddy’ Smith. Those were the days when the former New South Wales detective Roger Rogerson had, some time earlier, fallen from grace. As a very new constable, I formed the view that I strongly favoured good governance arrangements in those sorts of operations, although I had no direct personal experience in anything more than surveillance and electronic listening posts—unless speeding under orders in unmarked surveillance cars was classified as some sort of controlled operation, and clearly it was not. Perhaps it was, however, one example of where the governance arrangements in the mid-1980s left something to be desired.

The schedule 4 amendments to the Criminal Code Act 1995 will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by considering as a group the conduct of offenders who operate together. The purpose of the amendments to the Telecommunications (Interception and Access) Act 1979 is to facilitate greater access to telecommunications interception for criminal organisation offences.

I would also make some comments about organised crime and the focus on outlaw motorcycle gangs. The media has in the past week widely reported the foundation some time ago of the United Motorcycle Council, representing gangs across Australia, which is soon to open a branch representing seven gangs in Western Australia. The Sunday Times reported that a PR firm had been engaged by the United Motorcycle Council and even ran a story on the young female director. No doubt the United Motorcycle Council would be delighted with the publicity. The PR firm would also be pleased with the profile generated. I would imagine that such a puff piece helped in their ethical concern over the decision to take on these clients. I am sure they have as much trouble sleeping as those members of the legal fraternity that have represented the outlaw motorcycle gangs in past court cases; however, that is a personal opinion. On the high side, the Sunday Times article says that the United Motorcycle Council was rejected originally by a few PR companies. It would seem that money—or fame—is not everything.

Whilst at a local shopping centre some months ago I was approached by a very friendly man, whose first question to me was what was my attitude toward Colin Barnett’s bikie law—Colin Barnett being the Premier of Western Australia. I took this as being a response to a number of media reports at the time that talked about tough laws being brought into the Western Australian parliament, although I was not familiar with the detailed proposals. This man was friendly and had a child with him, but he was tall and appeared to spend much of his time lifting heavy weights—certainly more time than I spend.

I assumed that he had a vested interest in the outcome of the passing of laws by the WA parliament, but it was clearly apparent that he stood against it. He then told me that he was, in fact, the president of one of the outlaw motorcycle gangs in Perth. I said to him that it was the perception of most people in Perth that members of the motorcycle gangs were involved in crime and particularly drug crime. He told me that he was the owner of a number of small businesses, like tattoo parlours. He also told me that the gang was more like a supportive brotherhood. He went on to say that if a member needed help, all the other members would drop everything to lend assistance, regardless of whether it was even in the middle of the night. I would imagine that what he told me was correct, and that members are obligated to assist other members. Perhaps his gang is different, but when we see images on the news of strengthened clubhouses with high security, these are not images of blokes’ friendship clubs. It is easy to form the perception that there is something to hide and that there are unlawful operations taking place.

I also want to comment briefly on the activities in the last week in Western Australia. It has been widely reported that the Finks motorcycle gang have visited Perth in significant numbers and that they are seeking to establish themselves in Perth. The Western Australian police did an excellent job of shadowing them and applying pressure to keep them in line. There appears to be trouble ahead, with the Finks and the Coffin Cheaters predicted to soon be engaged in a turf war. I think that, once again, the Western Australian police have done the right thing and a strong showing by the police has served to demonstrate that the Finks are not welcome, as indeed outlaw motorcycle gangs are not wanted in Perth. I look forward to the state laws being changed soon to increase the pressure on those that organise and commit crime.

From the outset I have said that I personally support measures that will toughen up the controls and the ability of law enforcement agencies and the courts to deal with the proceeds of crime for the benefit of society. I also support the sharing of information and the protection of those witnesses undertaking their duties on controlled operations. The accountability of criminals will be enhanced by these measures and I look forward to more effective law enforcement operations in the future, as a result.