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Thursday, 19 November 2009
Page: 8332


Senator LUDWIG (Special Minister of State and Cabinet Secretary) (9:59 AM) —I 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—

Crimes Amendment (Working With Children—Criminal History) Bill 2009

I rise to introduce the Crimes Amendment (Working With Children—Criminal History) Bill. The Bill implements the agreement made by the Council of Australian Governments’ on 29 November 2008 to enable the inter-jurisdictional exchange of further criminal history information for people working with children.

The Bill amends Part VIIC of the Crimes Act 1914, to create exceptions to provisions that prevent the disclosure of pardoned, quashed and spent convictions.

It will create new exceptions allowing pardoned and quashed convictions to be disclosed and expand the existing exception for the disclosure of spent convictions.

The Scoping Study and Implementation Plan, which preceded the COAG agreement, identified the safeguarding of children from sexual, physical and other abuse as a key priority for all Governments.

According to the Australian Institute of Criminology, unofficial estimates are that approximately 1 in 4 girls, and between 1 in 7 and 1 in 12 boys, are victims of some form of sexual abuse alone.

The effects of abuse and neglect on children are also tragic. The Australian Institute of Health and Welfare reports that there are established links between abuse or neglect as a child and poor social, behavioural and health outcomes as well as a higher likelihood of criminal offending and mental health issues.

It is for these reasons that governments across the Commonwealth have established schemes such as child protection registers and working with children checks to ensure we protect children, the most vulnerable members of our society, to our utmost ability.

The Scoping Study noted that assessment of the criminal history of people working with children or seeking to work with children is an important part of the overall strategy for managing risks to the safety and wellbeing of children.

It also recognised that child-related employment screening is a difficult and challenging process, which requires careful balancing of potential risks to children with individual rights to privacy, employment and the freedom to participate in the community as a volunteer.

The Australian Institute of Criminology, in its report Child Sexual Abuse: offender characteristics and modus operandi, noted that incarcerated sexual offenders are more likely to have previous convictions for non-sexual offences than for sexual offences.

Further, law enforcement agencies have indicated that charges relating to offences against children are often withdrawn as a decision is made to protect the child victim from the stress and trauma of giving evidence, cross-examination and simply waiting for committal and trial.

For these reasons, jurisdictions considered at COAG that it was appropriate to consider a person’s full criminal history, including non-conviction information, in assessing whether he or she poses a risk to children if employed in child related work.

The current provisions in the Crimes Act prevent the disclosure of a person’s full criminal history. This Bill carves out an exception to these provisions, allowing for the inter-jurisdictional exchange of criminal history information, including information on pardoned, quashed and spent convictions, for the specific purpose of child-related employment screening.

The exchange of the information permitted by the Bill is subject to stringent safeguards to ensure that the information is dealt with appropriately and to limit any potential misuse of the information.

Firstly, the COAG agreement requires that a person or body will only be prescribed in each jurisdiction for the purposes of enabling them to receive conviction information if the person or body:

  • is authorised by the government of the State or Territory in which it operates;
  • has a legislative basis for screening that prohibits further release or use of the information (except for legislated child protection functions in exceptional circumstances);
  • complies with applicable privacy, human rights and records management legislation;
  • reflects principles of natural justice; and
  • has risk assessment frameworks and appropriately skilled staff to assess risks to children’s safety.

Secondly, to reinforce the importance of these safeguards, before a person or body in a State or Territory can be prescribed in regulations to allow them to deal with Commonwealth criminal history information, I must first be satisfied that they meet all of these safeguards in their own jurisdiction. In particular, I will require their assessment processes to reflect principles of natural justice, including access to a merits review or appeal process by an independent arbiter.

Thirdly, the information can only be used to assess a person’s suitability to work with children and cannot be used for a general employment suitability or probity assessment.

The Bill also requires that a review of the new provisions be started no later than 30 June 2011 and be completed within 3 months.

Given the sensitive nature of the information that will be available under the information exchange, it will be important to assess the effectiveness of the regime, and ensure that information is being dealt with appropriately.

I commend this Bill.


Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

General introduction

The Standing Committee of Attorneys-General (SCAG) agreed to measures to support a national response to combat serious and organised crime at its meetings in April and August.

The national response reflects the desire, at the national level, for a coordinated effort to combat organised crime.

Measures agreed by SCAG require the Commonwealth, States and Territories to consider legislative measures to enhance criminal offences, police powers and criminal asset confiscation.

In June 2009, I introduced the first package of serious and organised crime reforms, as part of the Crimes Legislation Amendment (Serious and Organised Crime) Bill.

Those reforms implemented the Commonwealth’s commitment, as part of the SCAG agreement, to strengthen criminal asset confiscation, target unexplained wealth and enhance police powers to investigate organised crime.

This second Bill builds on these earlier reforms and further strengthens the laws necessary to combat organised crime.

These new reforms will enhance our ability to effectively prevent, investigate and prosecute organised criminal activity, and target the proceeds of organised crime.

This Bill continues the Government’s focus on:

1. more effectively prosecuting organised crime through new criminal organisation offences and enhanced money laundering, bribery and drug importation offences, and

2. stronger investigative and criminal asset confiscation powers to assist in the detection and disruption of organised crime activity.

These reforms reflect the seriousness of the organised crime threat, and growing recognition of its great economic and social cost to the Australian community.

Today, we have taken further, decisive action to target organised crime and enhance the security of the Australian community.

1. Criminal offences

It is important to ensure that we have in place criminal offences that target varying levels of involvement in the activities of a criminal organisation, and not just those people who are directly involved in committing criminal offences.

It is also vital that existing offence regimes remain effective in disrupting and deterring organised crime.

New organised crime offences

This Bill includes new organised crime offences that target persons who associate with those involved in organised criminal activity, and those who support, commit crimes for, or direct the activities of, a criminal organisation.

The investigation of these serious criminal offences will be supported by amendments to enable greater access to telecommunications interception.

The new offences will capture those at the ground level committing, or supporting the commission of, offences for organised crime groups.

They are also targeted at senior members of organised crime groups who direct the activities of the organisation, while maintaining distance from the actual commission of offences.

Under the new offence provisions, these people will be subject to penalties of up to 15 years imprisonment.

Money laundering and bribery offences

Activities such as money laundering and corruption play a critical role in facilitating organised crime.

This Bill improves the operation of the money laundering provisions in the Criminal Code, and enhances the ability of law enforcement and prosecution agencies to investigate and prosecute money laundering offences.

This Bill also substantially increases the deterrent effect of the offences in the Criminal Code that deal with those who bribe a foreign or Commonwealth public official, by significantly increasing the financial penalty applicable to the offences.

The amendments provide that, where a body corporate is convicted of a bribery offence, it could be liable to a financial penalty of $11 million or more.

The amendments ensure that penalties for these offences are sufficiently high to deter and punish bribery in the domestic and international spheres.

Drug importation offences

Driven by profit motive, organised crime networks are opportunistic, risk-averse, and commonly maintain a transnational presence.

To combat organised crime’s involvement in lucrative illegal activities such as drug trafficking, this Bill will amend the drug importation offences in the Criminal Code to ensure that they capture a broader range of criminal activity.

The offences will now apply to offenders who engage in activity connected to the importation of drugs into Australia, such as arranging for payment of those involved in the importation process and transferring the goods once they arrive in Australia.

2. Powers

Organised crime networks are dynamic, innovative and resilient.

Our efforts to enhance investigative powers and improve existing criminal asset confiscation and anti-money laundering laws must address these characteristics.

At the same time, it is necessary for law enforcement powers to be subject to rigorous safeguards and accountability mechanisms.

Search related amendments

Organised crime groups are sophisticated and make full use of rapidly advancing technology.

The Bill better enables law enforcement agencies to examine and search electronic equipment in an environment where, increasingly, organised crime is transacted through electronic equipment and over the internet.

This ensures that law enforcement officers are able to access data stored on, or accessible from, electronic equipment that is seized or moved from warrant premises.

New provisions will also allow a magistrate to order a person to provide assistance in accessing data on a computer or data storage device after it has been seized.

This power, which is currently only available when the computer is on the warrant premises, will assist law enforcement officers in overcoming challenges posed by technological developments such as encryption techniques.

Appropriate safeguards are included in the Bill.

For example, the Bill provides for a person to be compensated for any damage caused to equipment or data following a search or examination of the equipment.

The Bill also permits material seized under search and document production powers to be shared between Commonwealth agencies and with State and Territory law enforcement agencies.

Criminal asset confiscation and anti-money laundering laws

This Bill includes a raft of additional amendments to the Proceeds of Crime Act 2002 which clarify and improve the operation of the Act.

These measures further enhance the ability of prosecution agencies to trace, restrain and confiscate the benefits criminals derive from crime.

A strong criminal asset confiscation regime is pivotal to the fight against organised crime.

Many of the amendments in the Bill are based on operational experience and respond to the recommendations made in 2006 as part of the review of the Proceeds of Crime Act 2002 by Mr Tom Sherman AO.

The amendments will better assist our law enforcement agencies to strip organised crime groups of their ill-gained assets.

These measures will also assist in eliminating inconsistencies across the Act and rectifying anomalies. Organised crime gangs will no longer be able to rely on technicalities to avoid criminal asset confiscation.

This Bill also amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to improve the operation of the Act and enhance our ability to deter and detect the laundering of the proceeds of crime.

Australian Crime Commission related amendments

Further, this Bill will improve the operation and accountability of Australia’s national criminal intelligence agency, the Australian Crime Commission (ACC).

The ACC works with other Commonwealth, State and Territory law enforcement agencies to counter, and develop a better understanding of, serious and organised crime in Australia.

It is vital that the ACC is able to function effectively, subject to appropriate safeguards on the exercise of its special coercive powers.

Where authorised by the ACC Board, and provided a range of procedural requirements are met, an ACC examiner may compel a witness to attend an examination and answer questions in relation to a particular matter.

A key measure in this Bill will be to enhance the ACC’s ability to deal with witnesses who refuse to cooperate with an ACC examiner.

This measure will provide an ACC examiner with the power to refer uncooperative witnesses to the Federal Court, or a Supreme Court of a State or Territory, to be dealt with as if the conduct were contempt of that court.

This implements a recommendation made by Mr Mark Trowell QC in his Independent Review of the Australian Crime Commission Act.

The Bill also addresses the need for additional accountability regarding the exercise of the ACC’s powers by invalidating summons and notices to produce where reasons for their issue are not recorded.

The Bill also requires independent review of the ACC every five years.

The Bill will reverse the amendments made in 2007 to the Australian Crime Commission Act, and insert a requirement that the Act be reviewed every five years.

This will implement recommendations by the Parliamentary Joint Committee on the ACC in its report on the 2007 amendments to the Act.

National Witness Protection Program

This Bill also makes improvements to the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation.

Urgent amendment - fitness to plead

And finally, while not related to serious and organised crime, this Bill makes an urgent and minor amendment to the Crimes Act 1914 to preserve the ability of a person who has been charged with a Commonwealth offence and who is being tried in Victoria for a Commonwealth offence, to appeal a finding that they are unfit to plead.

This will address changes to Victorian legislation that take effect from October 2009.

Conclusion

In conclusion, this second package of serious and organised crime reforms builds on those introduced in June this year.

The Bill contains a range of measures to comprehensively deal with organised crime, through new and targeted organised crime offences, improvements to existing offences, and enhancements to investigative and criminal asset confiscation powers to assist in the detection and disruption of organised crime activity.

The Bill represents another significant step as part of a coordinated national effort to more effectively prevent, investigate and prosecute organised crime activities, and to improve laws that target the proceeds of organised crime groups.

I commend this Bill.

Debate (on motion by Senator Ludwig) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.