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Tuesday, 27 October 2009
Page: 11148


Dr WASHER (8:02 PM) —It is a pleasure to follow the member for Newcastle in speaking on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. The bill amends the Administrative Decisions (Judicial Review) Act 1977, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Australian Crime Commission Act 2002, the Crimes Act 1914, the Criminal Code Act 1995, the Customs Act 1901, the Law Enforcement Integrity Commissioner Act 2006, the Mutual Assistance in Criminal Matters Act 1987, the Proceeds of Crime Act 2002, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Witness Protection Act 1994. I commend the Attorney-General for achieving all of those great goals.

In April and August of this year, the Standing Committee of Attorneys-General agreed to a set of resolutions and arrangements for a comprehensive national response to combat organised crime. This bill implements legislative aspects of the national response that were not implemented by the Crimes Legislation Amendment (Serious and Organised Crime) Bill introduced in June of this year. The additional measures in this second bill strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity and target the proceeds of organised criminal groups. In general terms the bill aims to: strengthen criminal asset confiscation and anti-money laundering laws; enhance search and seizure powers and the ability of law enforcement to access data from electronic equipment; improve the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation; introduce new offences that would target persons involved in organised crime and facilitate greater access to telecommunications interception for the investigation of new serious and organised crime offences; improve the operation and accountability of the Australian Crime Commission; improve money laundering, bribery and drug importation offences; and make minor and consequential amendments to correct references to provisions dealing with the extension of criminal liability.

Although these aims are to be commended, there are some aspects of the bill that need to be considered closely. The purpose of schedule 4 is to insert four new offences targeting persons involved in serious and organised crime into the Criminal Code Act 1995. Specifically these new offences are: associating with a person engaged in criminal activity in a manner which may facilitate organised crime, providing material support to a criminal organisation, directing the activities of a criminal organisation and committing an offence for the benefit of or at the direction of a criminal organisation. The first three of these offences extend the traditional boundaries of liability to include alleged conduct which facilitates criminal activity at a broader level rather than conduct which is specifically linked to the commission or planning of an offence. This broadening of criminal liability would certainly enable law enforcement to prosecute those who play an important, if not direct, role in the commission of serious organised crime.

However, this benefit must be balanced with the fact that people may be exposed to sanction not because of their specific conduct but because of their associations with offenders or offences. The focus of criminal liability is shifted from a person’s conduct to their associations. Some people in our society have a greater choice than others about the extent to which they may interact with those that potentially engage in criminal activity. Although the defence provisions extend to immediate family relationships, relationships with cousins, aunties, uncles and so on are not covered. The Criminal Code does not currently extend criminal responsibility to include those that attempt to commit an offence; those that aid, abet, counsel or procure the commission of an offence; those that urge the commission of an offence; those that conspire with another to commit an offence; and those that procure conduct of another that would have constituted an offence. Also the code contains substantive offence provisions which criminalise conduct such as the possession, transfer or receipt of property or funds which either are the proceeds of an offence or are likely to be used as an instrument of an offence.

As outlined by the Law Council of Australia in its submission to the Senate Legal and Constitutional Affairs Committee, if these amendments can help law enforcement agencies where they have evidence that certain persons are engaged in conduct which is harmful to the community but they are unable to act as the law lacks a provision that prohibits such conduct, then they are to be commended. If, however, law is to be amended to assist where a suspicion of unlawful conduct exists but law enforcement is unable to act due to insufficient evidence to substantiate their suspicion, then it needs to be examined more closely, which is what the Senate Legal and Constitutional Affairs Legislation Committee is currently undertaking—and I look forward to their report being issued on the 16 November this year. Criminal asset confiscation is proposed to be strengthened through schedule 1 of the bill, which amends the Proceeds of Crimes Act 2002. The proposed amendments respond to recommendations of law enforcement agencies and to the 2006 Commonwealth Report on the independent review of the operation of the proceeds of Crime Act 2002, by Mr Tom Sherman AO. The amendments in schedule 1 will: make tests for exclusion and recovery of property fairer and more consistent including strengthening protections for third parties; improve the operation of examination provisions; increase the effectiveness of information gathering tools under the Proceeds of Crime Act; clarify the operation of orders ancillary to restraining orders; address technical recommendations with respect to the admission of evidence; ensure the correct calculation of pecuniary penalty orders; expand and clarify definitions used in the act; and make minor and technical amendments to the act, including to enhance the effectiveness of the Confiscated Assets Account. The overarching purpose of these amendments is to improve the operation of the Proceeds of Crime Act to ensure that it can be used effectively to deprive persons involved in organised crime of the financial benefits of their criminal activity.

Schedule 2 contains search related amendments that will target two main aspects of the search warrant provisions in the Crimes Act 1914. Firstly, the reforms will allow material seized under the act to be used by, and shared between, Commonwealth, state, territory and foreign law enforcement agencies This is necessary for the proper investigation of offences which cross jurisdictional boundaries. The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment to keep up with technological advancements. Essentially, it will make it easier for police to access and copy data from electronic equipment located at warrant premises. Currently police may operate electronic equipment found at a warrant premise if they believe on reasonable grounds that the data may constitute evidential material. The proposed amendments remove the requirement of believing on reasonable grounds, so essentially data can be accessed regardless of whether that material is suspected to be evidential material. It must be kept in mind that this may have far-reaching privacy implications as such data can include material held offsite at multiple locations where it can be accessed through the electronic equipment.

Schedule 3 proposes to amend the Witness Protection Act 1994 to improve the operation of the National Witness Protection Program. The program provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such a person. The amendments implement recommendations made in the 2003 Review of the national witness protection program and are informed by operational experience with the program. The amendments aim to: provide increased protection and security for witnesses and others included in the program, as well as officers involved in the operation; allow protection and assistance available under the program to be extended to former participants and other related persons where appropriate; and ensure that state and territory participants are afforded the same protection and have the same obligations as Commonwealth participants.

The purpose of part 1 of schedule 5 is to enhance the ability of law enforcement agencies to investigate and prosecute the money laundering offences within the Criminal Code. The amendments aim to address problems that have been identified by the Commonwealth Director of Public Prosecutions and the Australian Federal Police when investigating and prosecuting the money laundering offences under the code. Of particular note, the amendments extend the geographical jurisdiction of those offences and remove limitations on the scope of the offences to enable them to apply to the full extent of the Commonwealth’s constitutional power in this area.

The purpose of part 2 of schedule 5 is to address issues identified by AUSTRAC, the anti money laundering and counter-terrorism financing regulator, when taking enforcement action against reporting entities that do not comply with their obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Schedule 6 will make an urgent amendment to the Crimes Act to ensure that federal defendants in Victoria can continue to appeal a finding that they are unfit to plead This will address changes to Victorian legislation that will take effect from October 2009.

Schedule 7 will amend the Australian Crime Commission Act 2002 to improve the operation and accountability of the Australian Crime Commission, including by enhancing the commission’s powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular, independent review of the commission. This addresses the problem highlighted in the 2008 report of Mr Mark Trowell QC, where the lack of contempt power for dealing with uncooperative witnesses in examinations was a significant impediment to its capacity to combat serious and organised crime. These amendments provide the commission with the power to refer uncooperative witnesses to court to be dealt with for contempt.

Schedule 8 will substantially increase the penalties for the offences of bribing a foreign public official and bribery of a Commonwealth public official. The existing penalty for both offences is 10 years imprisonment. The courts can impose instead or in addition a pecuniary penalty which equates to a maximum of $66,000 for an individual and $330,000 for a body corporate. In 2006 the OECD, in reviewing the penalties in light of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, found that they were not effective, proportionate or dissuasive as required by the convention. The amendments will increase the penalty for bribing to 10 years, a fine of $1.1 million or both for an individual; and the penalty of a body corporate the greater of $11 million, three times the value of any benefit obtained that is reasonably attributable to the conduct or, if the benefit cannot be calculated, 10 per cent of the annual turnover of the body corporate during the 12 months ending at the end of the month in which the conduct occurred.

Schedule 9 will extend the definition of ‘import’ within the Criminal Code to include ‘dealing with a substance in connection with its importation’. The effect of this amendment is that the Commonwealth drug importation offences will capture a broader range of criminal activity. It is thought that organised crime costs Australia $15 billion every year. These crimes operate across international and state borders and employ high-tech equipment and technology. This bill contains a range of measures to enhance the law’s ability to prevent, investigate and prosecute such criminal activity and to target the proceeds from organised crime. In general I commend the bill; however, I am conscious of the pending Senate committee’s report and recommended amendments to be made in the Senate.