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Tuesday, 20 August 2002
Page: 3329


Senator COONAN (Minister for Revenue and Assistant Treasurer) (4:09 PM) —I table five revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

PROCEEDS OF CRIME BILL 2002

The purpose of the Proceeds of Crime Bill 2002 is to greatly strengthen and improve Commonwealth laws for the confiscation of proceeds of crime. The bill achieves this by introducing a system of `civil-forfeiture' and enhancing the existing conviction-based regime.

The bill also makes special provision for the confiscation of property used in, intended to be used in, or derived from terrorist offences which are a form of organised crime of particular focus since the tragic events in the United States on September 11.

The primary motive for organised crime is profit. Each year in Australia, drug trafficking, money laundering, fraud, people smuggling and other forms of serious crime generate billions of dollars.

This money is derived at the expense of the rest of the community. It is earned through the harm, suffering, and human misery of others. It is used to finance future criminal activity including terrorism. It is tax-free. Criminals have no legal or moral entitlement to the proceeds of their crimes.

The need for strong and effective laws for the confiscation of proceeds of crime is self-evident. The purpose of such laws is to discourage and deter crime by reducing profits; to prevent crime by diminishing the capacity of offenders to finance future criminal activities and to remedy the unjust enrichment of criminals who profit at society's expense. The provisions of the bill relating to freezing and confiscating property associated with terrorism implement relevant parts of the International Convention for the Suppression of the Financing of Terrorism and United Nations Security Council Resolution 1373.

For a number of years, the Commonwealth and all States have had laws enabling proceeds of crime to be confiscated after a conviction has been obtained (“conviction-based laws”). However, these laws have not been fully effective. In particular they have failed to impact upon those at the pinnacle of criminal organisations. With advancements in technology and globalisation, such persons can distance themselves from the individual criminal acts, thereby evading conviction and placing their profits beyond the reach of conviction-based laws. In its 1999 report entitled Confiscation That Counts, the Australian Law Reform Commission concluded that Commonwealth conviction-based laws were inadequate, and recommended the introduction of a `civil-forfeiture' regime.

Although all confiscation proceedings including those under the Proceeds of Crime Act 1987 are civil proceedings, the term “civil forfeiture” has become widely recognised as a term to describe forfeiture which does not require conviction of a criminal offence as a condition precedent.

The Proceeds of Crime Bill 2002 contains a comprehensive civil-forfeiture scheme, and represents a concrete demonstration of the Government's tough stance against organised crime.

Under the bill, civil forfeiture can occur where a court is satisfied that it is more probable than not that a serious offence has been committed. Such a finding by a court does not constitute a conviction and no criminal consequences can flow from it. The provisions are all about accounting for unlawful enrichment in civil proceedings, not the imposition of criminal sanctions. The object or focus of the proceeding is the recovery of assets and profits, not putting people in gaol.

The introduction of civil-forfeiture at the Commonwealth level is an important step in the fight against crime, and is consistent with both national and international trends. Already successful in both New South Wales and Western Australia, civil-forfeiture legislation is also being considered in all other Australian states and territories at this time.

The Proceeds of Crime Bill will, if enacted eventually replace the Proceeds of Crime Act 1987 which will continue to apply to proceedings commenced under that Act. For this reason this bill deals not only with a new civil forfeiture regime broadly similar to that which has been operating in New South Wales since 1997, but includes improved provisions for conviction based confiscation.

A companion bill contains the consequential amendments flowing from this bill and sets out the arrangements for the phasing out of the existing Proceeds of Crime Act 1987.

The Proceeds of Crime Bill also proposes the introduction into Commonwealth legislation of a regime to prevent criminals exploiting their notoriety for commercial purposes. The bill includes provision for literary proceeds orders that can be made for example where criminals sell their stories to the media.

This bill represents a major overhaul of the Commonwealth's confiscation regime and demonstrates the Government's commitment to combating organised crime within Australia and deterring transnational criminals from using Australia as a staging post for their activities. This is particularly important in the Australian and international fight against terrorism.

The bill was considered by the Senate Legal and Constitutional Legislation Committee, and was amended in the House of Representatives to take into account recommendations stemming from that process.

The bill passed the House of Representatives with the full support of the Opposition, and I look forward to the bill enjoying that support in the Senate.

A detailed explanation of the contents of the bill is contained in the Explanatory Memorandum.

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PROCEEDS OF CRIME (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2002

This is a companion bill to the Proceeds of Crime Bill 2002 and contains transitional and consequential provisions.

The bill will amend the Criminal Code to insert new money laundering offences replacing those in the Proceeds of Crime Act 1987 with updated provisions based on the recommendations of the Australian Law Reform Commission. The bill proposes a series of new offences graded according both to the level of knowledge required of the offender and the value of the property involved in the dealing constituting the laundering. These new offences will permit prosecutors to more accurately reflect the level of culpability of the offender in the charges they prefer and courts will be provided with a greater degree of guidance in their sentencing. The regime includes alternative verdict provisions so that where a court is satisfied that the person is not guilty of the offence charged but is guilty of another money laundering offence which carries a lesser penalty the person can be convicted of that lesser offence consistent with the rules of procedural fairness. The upper limit of the penalties will be increased from 20 to 25 years imprisonment. The scope of the offence has been expanded to include exports as well as imports of money and other property, money laundering in relation to some State and Territory offences which have relevance to the Commonwealth, and where the money or property may become an instrument of crime used to facilitate criminal activity, such as occurred in the lead up to the recent terrorist attacks.

The bill also amends the Mutual Assistance in Criminal Matters Act 1987 which provides the mechanism for international co-operation in criminal cases including in the tracing, freezing and confiscation of proceeds of crime. Currently, many of the provisions dealing with enforcement of foreign orders are scattered throughout the Proceeds of Crime Act 1987. This bill will place most of these provisions in the Mutual Assistance in Criminal Matters Act 1987 and in the course of doing so has brought them into line with the provisions of the Proceeds of Crime Bill applicable to Australian offences. The bill will also enable prescribed countries to enforce civil forfeiture orders in Australia. Only countries which have a sound justice system and whose civil forfeiture regime incorporates adequate safeguards for innocent third parties as well as persons suspected of engaging in criminal activities will be prescribed. This is also of importance in efforts to combat those who finance terrorism.

The Financial Transaction Reports Act 1988 is amended to incorporate the record retention requirements placed on financial institutions by the Proceeds of Crime Act 1987. The provisions relating to the transfer of records between authorised deposit-taking institutions are also relocated.

The bill amends the Bankruptcy Act as recommended by the Australian Law Reform Commission to ensure that bankruptcy is not used as a means of thwarting confiscation of the proceeds of crime by using them to satisfy creditors in a bankruptcy. Although this may be seen by some as restricting the funds available to satisfy creditors, the property in question is not derived from lawful activity and the bankrupt has no legal or moral entitlement to that property. It is therefore not appropriate that an offender be able to use proceeds of crime to settle debts. Legitimate creditors can continue to apply to a court to have property excluded from restraining orders to satisfy the liability. These amendments will take effect for bankruptcies occurring after the commencement of the relevant part of this bill.

Similarly the bill amends the Family Law Act to ensure that property settlements and spousal maintenance cannot be used to defeat confiscation proceedings. The bill will require family law proceedings dealing with property affected by a restraining order to be stayed pending the outcome of confiscation proceedings. This is consistent with the current practice of the Family Court. Dependents can continue to seek release of property from restraint to prevent hardship. The provisions will have no impact on child maintenance.

Decisions of the DPP and an approved examiner in relation to compulsory examinations about the financial affairs of people under the proceeds of crime act have been included in Schedule 1 of the Administrative Decisions (Judicial Review) Act as decisions to which that Act does not apply. Decisions would still be reviewable under the prerogative writs and section 39B of the Judiciary Act 1903.

To ensure that there is no doubt that the AFP has the function of enforcing the Proceeds of Crime Act the Australian Federal Police Act 1979 is amended to specifically confer that function.

This bill will amend the Telecommunications (Interception) Act 1979 to enable telecommunications interception material which has been obtained for the purposes of a criminal investigation, to be used in civil forfeiture proceedings to obtain a restraining order.

The bill will also amend the Telecommunications (Interception) Act 1979 to permit the NCA to communicate relevant intercepted information in connection with a proceeding for the confiscation or forfeiture of property. This amendment will bring the NCA's powers into line with those of the AFP and State Police services.

This will enhance the ability of law enforcement agencies to confiscate the proceeds of crime accumulated by the `Mr Bigs' of organised and transnational crime.

The amendments to other legislation affected by this bill are consequential on the Proceeds of Crime Bill.

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WORKPLACE RELATIONS AMENDMENT (GENUINE BARGAINING) BILL 2002

In reforming the workplace relations system, the Government has ensured that Australia has workplace relations arrangements that sustain and enhance our living standards, our jobs, our productivity and our international competitiveness. The Government has also promoted a more inclusive and cooperative workplace system where employers and employees are able to make agreements on wages, conditions and work and family responsibilities subject to a safety net of minimum standards.

Australia's system of genuine workplace or enterprise level bargaining has underpinned these achievements. The overwhelming majority of Australian employees in the federal workplace relations system are now employed under enterprise or workplace agreements—whether collective or individual.

Enterprise bargaining has produced benefits for both employees and employers. Employees have gained better wages, more relevant conditions, more jobs and greater workplace participation. At the same time, employers have gained higher productivity, increased competitiveness, and lower industrial dispute levels.

Significantly, the outcomes from this system have been far superior to those of the centrally controlled system that preceded it. Over the life of the Coalition Government, the lowest paid workers dependent on award rates of pay have received safety net adjustments of $64 a week, or a 9 per cent increase in real wages. This contrasts markedly with the 5 per cent decrease in real wages for low paid workers that occurred under the previous 13 years of Labor Government.

Workplace bargaining has attracted bipartisan political and industrial support at federal and state levels in every Australian jurisdiction. The previous Labor government and the ACTU both adopted enterprise bargaining as policy in their Accord Mark VI in 1990, and pursued it vigorously in industrial tribunals, legislatively and publicly.

For all of the deficiencies of the previous Labor government, for all of the inadequacies of the bargaining model implemented at that time, Labor knew what we all know—that workplace bargaining is a structural reform that benefits Australia.

Employers and employees have clearly embraced workplace bargaining in the past decade. More than 41,000 collective agreements have been formalised under the federal system alone, with thousands more under state bargaining systems. Over 1.3 million employees are covered by current federal wage agreements including those on one of the 222,000 individual agreements made since March 1997. Agreements made directly between employers and their employees, with limited third party involvement, are increasingly being used as a vehicle for better wages and flexible and innovative employment conditions and work practices.

This bill will ensure that enterprise bargaining continues to benefit employees with more jobs and better wages, and employers with higher productivity, increased competitiveness, and fewer strikes.

Bargaining Periods

Workplace bargaining helps the economy because wages and conditions are determined by genuine workplace negotiations by employees and employers with outcomes based on local knowledge and circumstances and mutual interests. However, elements within the union movement have attempted to orchestrate a return to industry level bargaining through the process known as pattern bargaining. Unions use pattern bargaining to conduct their negotiations across a range of employers or an industry and do not genuinely negotiate at an enterprise level.

Pattern bargaining ignores the needs of employees and employers at the workplace level. It represents an outdated, one-size-fits-all approach to workplace relations where union officials utilised the centralised system to dictate their agenda to both employers and employees. This discredited approach works against the goal of an inclusive and cooperative workplace relations system that sustains and enhances our living standards, our jobs, our productivity and our international competitiveness.

This bill would not prevent unions from making the same claims over a number of employers. However, it does reinforce the Industrial Relations Commission's ability to end protected strike action by suspending or terminating bargaining periods if unions are not genuinely bargaining about their claims at the workplace level.

The bill draws on the decision of the Commission in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [Print T1982] where the Commission drew a distinction between unions making common claims across a number of employers and unions refusing to genuinely bargain at the workplace level.

The bill would insert a new subsection 170MW(2A) into the Workplace Relations Act 1996 which would list a number of factors that the Commission would have to consider when it is determining whether, for the purposes of paragraph 170MW(2)(b), a negotiating party is not genuinely trying to reach agreement with the other negotiating parties. These factors would not be exhaustive nor would they necessarily decide the issue on their own.

This bill would also insert a new section 170MWA, which would apply in circumstances where an earlier bargaining period has ended because the initiating party has given notice to withdraw the bargaining period, to deprive the Commission of jurisdiction to hear a case under section 170MW. It would empower the Commission to make orders to prevent the initiation of a new bargaining period or to order that conditions attach to any such bargaining period. Before issuing such an order, the Commission would have to give the former negotiating parties the opportunity to be heard and conclude that the making of an order is in the public interest.

The bill was amended in the House to:

· enable an application for suspension or termination of bargaining periods to simply identify the enterprise (or part of an enterprise) involved, without having to specify the bargaining periods involved; and

· allow the Commission to ban further bargaining periods during a suspension (at present the Commission can only impose a ban following termination of a bargaining period).

The first amendment will enable negotiating parties to make request for termination and suspension without having to produce the case numbers for each specific bargaining period. This will expedite the process when parties are seeking this form of relief. Identifying numerous case numbers is particularly a problem in instances of pattern bargaining. These amendments will enable parties seeking suspension or termination of a bargaining period to avoid delay in situations of pattern bargaining.

The effect of the second amendment is to close a loophole that would allow parties to notify new bargaining periods while a bargaining period has been suspended. The Commission can already ban further bargaining periods when it terminates a bargaining period; the amendment will allow the Commission to ban further bargaining periods for the period of a suspension.

Cooling-off periods

During protracted disputes, antagonisms can become entrenched and parties can often lose sight of their original objectives. Cooling-off periods allow negotiating parties to take a step back from industrial conflict and refocus them on reaching a resolution which works for the business in question.

Currently the Commission does not have the specific ability to order a cooling-off period in the case of a protracted dispute. The Commission has used the provisions of section 170MW to order de facto cooling-off periods, to provide a circuit breaker in particularly difficult bargaining disputes, but it is not able to do this in all situations where a cooling-off period may be warranted.

The Government believes that cooling-off periods should be given statutory recognition because of their potential to refocus negotiations. Accordingly, this bill would give the Commission discretion to suspend a bargaining period for a specified period, on application by a negotiating party.

Proposed paragraph 170MWB(1)(c) would require the Commission to consider a number of factors to determine whether a suspension is appropriate, including:

· whether suspension of the bargaining period would assist the parties in resolving the issues between them; and

· whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of the Act.

Proposed subsection 170MWB(2) would make it clear that the duration of a cooling-off period is a matter for the Commission's discretion. In considering the application, the Commission would give the negotiating parties an opportunity to be heard.

The Commission would be able to extend the cooling-off period on the application of a negotiating party, after hearing the other negotiating parties. In determining whether to extend a period of suspension, the Commission would consider:

· the factors required to be considered when first ordering a suspension; and

· whether the negotiating parties genuinely tried to reach an agreement during the period of the initial suspension.

Only one extension of the cooling-off period would be allowed, at the Commission's discretion. There is no prescribed duration for a cooling-off period as the appropriate length of a suspension or extension will vary according to the nature of the dispute and the industry in which the dispute occurs.

If the Commission suspends the bargaining period (or extends the initial suspension), the Commission will have to inform the negotiating parties that they may choose to attend private mediation or ask the Commission to conciliate the dispute.

This bill reinforces the positive trends of more jobs, better wages, higher productivity, increased competitiveness, and fewer strikes. The Government's workplace reform has brought these benefits to the Australian economy and the well-being of all Australians. We cannot afford to allow these gains to be neutralised or wound back for the benefit of radical elements within the union movement. The bill is a moderate but necessary reform to ensure this does not occur.

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JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL 2002

The Jurisdiction of Courts Legislation Amendment Bill 2002 is the same in substance as the Jurisdiction of Courts Legislation Amendment Bill 2001 which was introduced on 27 September 2001.

That bill lapsed when the parliament was prorogued.

This bill amends the Federal Court of Australia Act 1976 and the Judiciary Act 1903 to allow the Australian Capital Territory to establish an ACT Court of Appeal.

The bill also amends the Federal Court of Australia Act 1976 to abolish the redundant office of judicial registrar and to make some changes to the practices and procedures of the Federal Court.

Following self-government for the Australian Capital Territory, responsibility for the ACT Supreme Court was transferred to the Territory on 1 July 1992.

However, the Federal Court continued to exercise appellate jurisdiction for the ACT Supreme Court.

It is now appropriate for the ACT to establish its own appeal court with the consequent removal of the appellate jurisdiction from the Federal Court.

The ACT Legislative Assembly has passed the Supreme Court Amendment Act 2001 which provides for an ACT Court of Appeal to hear appeals from the ACT Supreme Court.

The provisions in this bill complement the ACT legislation.

The ACT legislation provides that the ACT Court of Appeal comprises all the ACT Supreme Court judges, resident, additional and acting.

The legislation also provides for the appointment of a President of the Court of Appeal.

The ACT Government has announced the appointment of Justice Crispin as President of the Court of Appeal.

Since the establishment of the Federal Court in 1977 it has been the usual practice for a resident ACT Supreme Court judge to sit on the Full Federal Court in an appeal from the ACT Supreme Court.

Judges of the Federal Court have made a significant contribution to the appellate work from the ACT and that work has been of the highest quality.

It is expected that the current system of Federal Court judges being appointed as additional judges to the ACT Supreme Court will continue.

These judges will also be eligible to sit on the Court of Appeal.

There are transitional provisions in the bill which provide that where the substantive hearing in an appeal from the ACT Supreme Court has already commenced in the Federal Court, it will continue to be heard in the Federal Court.

The bill will make a number of other amendments to the Federal Court Act.

One amendment will provide for the abolition of the office of judicial registrar. There are no longer any judicial registrars appointed to the Federal Court.

With the establishment of the Federal Magistrates Service it is no longer necessary to retain the position of judicial registrar as the Federal Magistrates Service would now handle less complex work that previously was considered suitable for judicial registrars.

Other amendments to the Federal Court Act make some changes to the practices and procedures of the Federal Court.

These amendments are of a minor policy nature.

The bill amends the Federal Court Act to allow the Registrar to appoint as a Marshal a person who is not engaged under the Public Service Act 1999.

The Court has experienced difficulty when a person who is not engaged under the Public Service Act needs to be appointed as a Marshal.

This can arise in a remote area where there are no staff of the Federal Court or other appropriate Commonwealth employees.

This amendment would allow a person not engaged under the Public Service Act to be appointed as a Marshal.

The bill will also allow the Chief Justice to refer part of a matter to the Full Court.

This amendment makes it clear that the Court has jurisdiction to refer part of a matter, as well as a whole matter, to the Full Court.

The bill will amend the Federal Court's interlocutory jurisdiction where a matter is referred by a tribunal or authority.

Subsection 20(2) of the Act provides for the Full Court to exercise jurisdiction in a matter from a tribunal or authority constituted by a judge.

The amendments provide that certain interlocutory matters may be heard or determined by a judge or a Full Court.

Section 25 of the Act provides for the exercise of appellate jurisdiction.

The bill will amend section 25 to allow a single judge in an appeal to order that an appeal be dismissed for want of prosecution or failure to comply with a direction of the Court.

Another amendment will allow locally engaged diplomatic staff in Australian embassies to witness affidavits.

This amendment will bring the provisions of the Federal Court Act into line with amendments made to various other Acts regarding the witnessing of documents, by allowing locally engaged staff at Australian consular offices to undertake such tasks.

Importantly the amendments will provide clearer provision for the use of video and audio links in Federal Court proceedings.

Section 47 of the Act currently provides some guidance for the use of video and audio links.

The Court requested that the Act be amended to provide detailed provisions for the use of video or audio links or other appropriate means.

The new provisions are based on those in the Federal Magistrates Act 1999.

In order to facilitate the processing of matters electronically, the bill amends the Act to allow a writ, commission or process to be signed by affixing an electronic signature.

Although these amendments do not represent major policy changes, they will improve the efficiency of the Federal Court and its delivery of services to the community.

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FAMILY LAW AMENDMENT (CHILD PROTECTION Convention) BILL 2002

The Family Law Amendment (Child Protection Convention) Bill 2002 will amend the Family Law Act 1975.

Enactment of the bill will enable Australia to ratify the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996.

The bill was first introduced on 20 September last year and reintroduced in the House in March this year and passed by that House in June.

The bill has since been considered by the Senate Legal and Constitutional Legislation Committee.

In May this year the Committee recommended the bill be passed.

Ratification of the Convention will be of significant benefit to Australian families, and in particular to children who are the subject of international family law or child protection litigation.

While the consistent theme in the Government's reform agenda in family law has been to shift the focus away from litigation as the most appropriate choice for the resolution of family law disputes, it remains a fact that litigation is the final resort for a minority of parents.

In these cases, jurisdictional certainty and finality of court orders are important and will be aided by Australia becoming a party to the Convention.

Existing family law litigation across international boundaries is subject to uncertainty as to jurisdiction and unpredictability in relation to the enforcement of orders abroad.

The Convention attempts to overcome these uncertainties by providing clear jurisdictional rules and by encouraging co-operation between authorities in different countries to protect the best interests of children affected by disputes over parental responsibility.

The complexity of international litigation necessarily leads to complex conflicts of law rules. In examining the provisions of the bill, it is important to keep in mind that Australian courts and authorities already apply highly technical conflict of law rules, most of which have been developed piecemeal over time by the courts as part of the common law.

The Convention is largely consistent with those existing rules but has the advantage of codifying the rules in a form which is expected to be adopted in many countries.

Conflict in jurisdiction between Australian courts and overseas courts in children's matters has been a longstanding area of difficulty.

Australian and overseas courts sometimes make conflicting parenting orders in relation to the same children.

The jurisdictional rules laid down in the Child Protection Convention are designed to remove uncertainty for parents and the courts in determining the appropriate forum to hear disputes as to parental responsibility.

The Family Law Act provides that each of the parents of a child has parental responsibility in relation to the child.

However in other countries, like New Zealand and the United Kingdom, a father who is not married to the child's mother has no rights of custody by operation of law.

Under the Convention, the parental responsibility of an unmarried Australian father will be automatically recognised in those countries.

Under the Convention a parent will be able to send a parenting order made by an Australian court to another Convention country for enforcement.

For the purpose of protecting the best interests of children, the Convention also includes a range of procedures to encourage co-operation between courts and child protection authorities in different countries.

Another major objective of the Convention is to address the problem of international cases involving protection of children from abuse and neglect.

It is in the best interests of children that there be internationally agreed rules determining which child protection authorities have jurisdiction in relation to a child.

Commonwealth and State officials have been co-operating in the development of an appropriate legislative scheme to implement the Convention in Australia. This bill gives effect to Commonwealth aspects of the scheme.

As I have noted, the Senate Legal and Constitutional Legislation Committee has recommended that the bill should be passed.

In accordance with reforms to the treaty-making process introduced by this Government the Convention has been subject to scrutiny by the Joint Standing Committee on Treaties.

That Committee recommended in June that Australia ratify the Convention.

I commend the bill to the Senate.

Debate (on motion by Senator Mackay) adjourned.

Ordered that the Proceeds of Crime Bill 2002 and the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill 2002 be listed on the Notice Paper as one order of the day and the remaining bills be listed on the Notice Paper as separate orders of the day.