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Tuesday, 24 March 1987
Page: 1206

Senator HAINES (Leader of the Australian Democrats)(3.29) —The National Crime Authority has been in operation now for some 2 1/2 years. I think that everybody in this chamber ought to be pleased to note that in the 1985-86 annual report, which is before us today, there is a clear indication that in that year, to the end of June last year, everybody felt that there had been significant consolidation and progress as far as the Authority was concerned. Certainly, I think that some of us who took part in or who just simply listened to the conference that was held in this chamber concerning the establishment of what was, I think, then described as the National Crime Commission and then later took part in the debates in the Parliament wondered from time to time whether the Authority, as it was finally decided it would be called, would ever get off the ground and be able to operate effectively. Certainly considerable differences were expressed between State governments and the Federal Government and between the law enforcement agencies and the civil liberties representatives, all of whom were party to the original discussions. But as we are not all aware, the Authority did get off the ground and, despite a few teething problems, it has operated, I think, with increasing confidence and increasing support, not just from this Parliament, but from the community generally.

As has already been acknowledged in this place, the Authority encountered some difficulties early in its life and, again, this is hardly surprising, given the large number of government and non-government agencies with which it has had to work and the enormity of the task confronting it in meeting its aims. One particular concern, as Senator Durack has mentioned, was the strained relationship that existed for some time between the Authority and the Joint Parliamentary Committee on the National Crime Authority that was set up under section 53 of the Act to deal with and liaise with the Authority and to have some sort of nebulous relationship with it. I served on that Committee for a number of years and I can attest, as no doubt my colleague Senator Jessop will if he gets to his feet, that relationships are not always the most cordial, although I think they were always courteous. Certainly the Authority had one view on the matter of section 53 and the Committee from time to time took a slightly different one. The views were different as far as their definition of the roles of the Committee and the Authority were concerned in respect of the relationship that each one had with the other. I have no doubt at all that for a while this certainly did interfere with the proper functioning of both the Authority and the Committee. We seemed to spend more time wrangling over who had jurisdiction over what and who had control over whom than we did in discussing much more important matters.

The issue is canvassed in some detail in the early pages of this report. However, I issue a word of caution to anybody who wants to make something of those strained relationships: It has to be remembered that the comments in this report are relevant to the year ended June 1986: that is, the report deals with the situation up to the end of the last financial year, and at that stage the relationship between the two bodies certainly was the subject of some discussions between them. More recently, however-and it is very important that we note this, almost a year after the end of the period that this report covers-the Joint Committee itself has presented its second report and it noted a marked improvement in its relationship with the Authority and described that relationship as being:

. . . characterised by a degree of mutual trust, a regular exchange of information and a willingness by each body to allow the other to discharge its statutory duties.

I think it is very important to note, before we all get excessively concerned or excited over the comments that are made in the early pages of this report, that the situation has changed significantly. What strains there were have diminished considerably; what points of contention there were in 1985-86 have all but disappeared, and the Committee and the Authority have got on to an even keel and are working easily with each other as, of course, was the intention all along. Given the importance of the task on which those bodies are working together, it is very gratifying to see this improvement and, of course, we all hope that it continues. Certainly I was sorry to have to leave the Committee because of other work that I had to take on, because I believe that both it and the Authority are now performing a very valuable service to the Parliament and, indeed, to Australia as a whole.

Some other aspects of the National Crime Authority report, I think, are probably more worthy of our attention than the brief period of uneasy relations that existed between the Joint Parliamentary Committee and the Authority itself. The Government's proposed legislation dealing with the forfeiture of assets, for example, is also canvassed in this report. Of course, the assets referred to are those derived from or used in criminal activity. The Authority has gone to some pains to comment on the Government's proposed legislation. At the time the proposal was first mooted, I welcomed it, on behalf of the Australian Democrats, as a matter of principle; that is, we supported the general concept behind it and then held off making any more enthusiastic comments while awaiting specific details of the legislation. I notice on pages 40 and 41 of this report that the Authority also welcomes many elements of the proposed package, while pointing to some weaknesses in it, as a tool in the fight against organised crime. On those pages the Authority makes certain suggestions, and I suggest that both the Government and the Parliament should bear these in mind when considering the final details of the legislation dealing with forfeiture of the proceeds of crime. I think it is important that we realise that what we are talking about is the forfeiture of those assets or proceeds that have derived from some criminal activity. On page 40 the Authority makes the point that it welcomes a number of the elements of the proposed package of measures, including:

the forfeiture of property used in or in connection with the commission of an offence, and property derived or realised, directly or indirectly, from the commission of an indictable offence against a Commonwealth law;

the imposition of a pecuniary penalty in respect of drug trafficking, organised fraud and proposed new money laundering offences, to equal the value of the whole of the offender's assets on conviction, and any property handled over the previous five years;

proposed new money laundering offences;

a proposed new offence of knowing or with reckless indifference receiving, possessing, concealing or disposing of property or money derived from the commission of an indictable offence against a law of the Commonwealth;

The report went on to say, a page later:

The Authority has made the following suggestions, aimed at making the forfeiture of assets concept a more useful tool in the control of organised crime and enabling swifter action to be taken against perpetrators.

The suggestions are two-fold. The first is:

Creation by a statute of a cause of action provable on the balance of probabilities and actionable by the Crown providing for the recovery of unlawfully obtained property.

Again, it needs to be stressed that we are talking about something unlawfully gained, assets gained which would not otherwise have been gained had it not been for the involvement of the owner in some criminal behaviour. The second suggestion the Authority makes is:

Creation of a new Commonwealth summary offence, on a rebuttable presumption, of being in possession of goods and/or monies suspected of having been unlawfully obtained.

Further, it is stated:

The Authority also considers that the package should incorporate a proposal to make it a criminal offence to facilitate crime through financial and like services, for example by knowingly or with reckless indifference arranging the movement of funds to finance drug importations.

I certainly welcome those suggestions and comments from the Authority. Associated with that proposal with regard to forfeiture of assets-and it is a proposal that has not been implemented; I have not even seen the sort of draft-in-confidence that from time to time flits around this place when the Government proposes legislation of this kind-is the Authority's success under present laws in identifying undeclared income by those people under investigation or in the case of people charged with drug offences, the identification of their assets. As the Special Minister of State (Senator Tate) noted in his statement, the Authority's investigations so far have led to the probable recovery of $17m to $18m from the proceeds of criminal activity.

Senator Peter Baume —Senator, were they people charged, or people convicted? Are you talking about people charged?

Senator HAINES —The Minister's tabling statement merely indicated that the Authority's investigations so far have led to the probable recovery of that amount of money. The fact is that, had we not had the Authority, it is not likely that the investigations of the sort that it has been undertaking would have been put in train. The fact that there is that gained revenue, if one likes, or at least not a loss to revenue, is something for which I think it can be commended. If the forfeiture legislation goes any distance to improving that matter, that, of course, will be something that we should look at most carefully.

Another matter of some concern raised by the Authority is the question of witness protection. I can remember, as a member of the Committee, having discussions about the vexed problem of protecting witnesses adequately-remembering that we are dealing with some fairly high-powered criminals in the sorts of investigations that the National Crime Authority is undertaking. We, as a party, have also raised this matter on a number of occasions. We have pointed out, among other things, that the provision of witness protection out of already stretched State police budgets is not a satisfactory approach to this increasingly serious problem. Senator Jessop will remember that we canvassed this matter at some length during several Committee hearings and our meetings with the Authority. I am therefore very pleased to see that the Minister has initiated discussions with law enforcement officials, corrective services officials and the National Crime Authority. I point out that it is a very welcome move by the Minister although, given how long ago it was that we had those discussions with the Authority, I would say that it is a touch overdue. The Authority has also commented on other legislative matters, including mutual assistance in criminal matters and extradition arrangements, telecommunications interception powers and listening devices. The undoubted expertise of the Authority should be borne in mind when finalising legislation on all of these matters.

In considering this report and future reports from the National Crime Authority, we should all be realistic in our appraisal of the Authority's performance. As the Chairman has noted, the term `success' in regard to its activities is a particularly difficult one to define, and even more difficult to assess in relation to any unique body such as this. A variety of yardsticks has been used by different people, including the number of arrests made as a result of the Authority's investigations. Quite rightly, it points out that this is a somewhat deficient yardstick. It is certainly an easily quantified one and a readily understood one, but it is clearly an inadequate criterion for judging the success of a body such as the NCA. I add that the Joint Committee also addressed this difficulty in its report last November, and concluded that it is extremely difficult to establish criteria by which to evaluate the effectiveness of an authority such as the one we are discussing today. It quite rightly described the number of arrests yardstick as simplistic and dismissed this sort of `scoreboard' material. More realistically, the Committee pointed out that the impact of the Authority's activities is more likely to be cumulative than immediate, particularly as it is difficult to bring organised crime to its knees effectively in the short term in which this Committee has been operating. On this basis the Committee cautioned against making hasty judgments as to the effectiveness of the Authority.

The Chairman of the NCA has gone into some detail on this subject. I suggest that his arguments, which I regard as extremely well reasoned, are to be looked at carefully and accepted by people who are concerned about how one judges the success of the Authority. He noted that total crime prevention is impossible, but that a realistic objective stems from the idea of containing the incidence of crime within manageable limits. He said that during the coming year the Authority will be giving closer consideration to defining objectives which are within its reach and developing logical performance indicators which will allow an assessment to be made of the extent to which the Authority is succeeding in doing what it can be reasonably expected to do. I do not suppose that we, as members of parliament, or, indeed, members of the community, would be anything other than human if we did not hold out hope that the Committee had some sort of magic wand and could, even within the confines of the Act, produce the sorts of results that we would all like to see. But we must remember that it has restraints on it; it has all sorts of constraints on it. We should not expect more of it than it can be reasonably expected to produce.

I, like the Minister, welcome this expression of intention from the Authority. I also believe that it will be of assistance in the review of the Authority which is to be conducted before the expiry of the NCA under the sunset clause. That opportunity to assess the structure and operations of the Authority will be extremely useful in determining this country's future options as far as the fight against organised crime is concerned. In the meantime, I repeat that the Authority is to be commended for the work it is doing and the results it has achieved. We should all acknowledge that the NCA plays a vital role in combating one of the most intractable problems confronting our society-that is, the problem of embedded organised crime in this country.