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Thursday, 4 February 2010
Page: 447

Senator BRANDIS (11:15 AM) —I rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. These bills are very important and are intended to implement a national response to organised crime. All members of the coalition are acutely aware of the great cost, including the great human cost, that organised crime imposes on society. Our record is a proud one of developing and implementing innovative methods to defeat this national scourge. However, we are also conscious that the measures used to combat organised crime have the potential to sweep up the innocent in their net. Great powers given to our law enforcement authorities, despite our best intentions, are also capable of producing injustice and oppression if the use of those powers is not properly circumscribed and subject to effective oversight. When introducing significant new anticrime measures we as legislators must always weigh up the potential for, and consequences of, the abuse of those measures. The key proposals of the bills are criminal asset confiscation and unexplained wealth.

Schedule 1 amends the Proceeds of Crime Act by introducing unexplained wealth orders for the confiscation processes. This targets wealth that a person cannot demonstrate to have been lawfully acquired. If a court is satisfied that an authorised officer has reasonable grounds to suspect that a person’s total wealth exceeds the value that has lawfully been acquired, it can compel the person to attend court to prove on the balance of probabilities that the wealth was not derived from offences with a connection to Commonwealth power. If the person fails to meet this onus, the court may order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth. Restraining orders are available in aid of this order and in advance of such an order—such orders being, by way of analogy, with injunctions available in civil proceedings.

At the time of applying for a restraining order, the DPP need not prove that the property is subject to the person’s effective control but must state the grounds for such a suspicion. If these requirements are met, the restraining order must be made even if there is no risk that the property will be disposed of or otherwise dealt with. It may also apply in relation to property that is not yet in the possession of the suspect. Property may be excluded from the scope of the order if the court is satisfied that it belongs to another person and is not under the suspect’s effective control.

A restraining order will cease to apply if the DPP has not applied for an unexplained wealth order within 28 days or if an unexplained wealth order is refused and avenues of appeal are closed or otherwise disposed of. The bill also provides for time limited asset-freezing orders in aid of the Proceeds of Crime Act—as, again by way of analogy, with civil injunctions. These apply for three days and are directed to accounts held by financial institutions.

Schedule 2 amends the regime applicable to non-conviction based orders. Currently there is a limitation period that precludes confiscation if offences are not detected until more than six years after the offence was committed. The review recommended extension of the limitation period to 12 years, but the bill proposes removing this time limit altogether. Amendments are also proposed to ease the recovery of legal costs by legal aid commissions from restrained assets.

Secondly, the bills deal with controlled operations, assumed identities and witness identity protection. The bills propose amendments to the Crimes Act 1914 in response to the High Court’s decision in Gedeon v the Commissioner of the New South Wales Crime Commission in 2008, which placed in doubt the protection of participants in a controlled operation. A ‘controlled operation’ is one in which undercover law enforcement officers are authorised to do certain things that would otherwise be illegal in order to obtain evidence of a serious offence. The amendments to the assumed identities regime will introduce mutual recognition provisions to permit undercover officers lawfully to obtain identity documents in other jurisdictions. The witness identity protection scheme applicable to undercover officers will enable certificates issued in one jurisdiction to be recognised in other jurisdictions.

Thirdly, the bills cover telecommunications interception and criminal organisations. The bills propose to amend the Telecommunications (Interception and Access) Act 1979 to include in the definition of ‘serious offence’ associating with, contributing to, aiding and conspiring with a criminal organisation or a member of that organisation for the purpose of supporting the commission of prescribed offences. The prescribed offences are the recently introduced state and territory offences commonly known as the bikie laws. Telecommunications interception will be made available to state and territory law enforcement agencies for investigation of these offences.

The provisions of the bills relating to undercover operations and joint commission of offences make relatively technical amendments. However, the provisions relating to unexplained wealth do raise significant civil liberties concerns and have generated substantial criticism. The unexplained wealth provisions are invasive. These bills have been placed under close scrutiny to ensure that adequate safeguards exist and that the arguments in favour of the proposals are properly articulated and justified. I can tell the Senate that the bills were considered by the shadow cabinet no fewer than three times and by the coalition party room on no fewer than three occasions, so concerned were we to ensure that the government got the balance right between effective law enforcement and empowering law enforcement agencies with sufficient apparatus to deal with serious and organised crime in the more sophisticated culture of the early 21st century on the one hand and protecting the citizen from invasive and arbitrary exercises of policing power on the other hand.

The Crimes Legislation Amendment (Serious and Organised Crime) Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which delivered its report on 17 September. The evidence to the committee included detailed submissions from the Law Council of Australia and all of the principal Commonwealth law enforcement and prosecution agencies. Significant concerns were expressed in particular about the unexplained wealth provisions by the Law Council, Civil Liberties Australia and members of the committee across party lines. Particular concerns were that an unexplained wealth order was mandatory rather than discretionary, which is in the initial draft of the bill; that the only link to any wrongdoing was an authorised officer’s suspicion that a person’s wealth was linked to a Commonwealth offence, a state offence with a federal aspect or a foreign offence; and that the safeguards against abuse of these powers were very limited.

The committee recommended extensive amendments to the bill. The most important of the committee’s recommendations were as follows. Firstly, a court should have a discretion to refuse to make an unexplained wealth order. In the initial iteration of the bill there was no discretion and, upon the court being satisfied as to certain stated criteria, the making of such an audit was mandatory. Secondly, the grounds upon which an officer suspects that a person’s wealth exceeds his or her lawfully acquired wealth must be specified in any supporting affidavit—a safeguard that was absent from the initial iteration of the bill. Thirdly, in relation to the joint commission of offences, there should be safeguards where an accused person terminated his or her participation and took reasonable steps to prevent the commission of an offence. The government has circulated amendments which purport to give effect to some of these recommendations. However, the coalition does not believe that those amendments are adequate. The sole ground for the exercise of any discretion by a judge to make an unexplained wealth order, as the bill stands at present, is that it is not in the public interest to do so.

Despite the coalition’s heartfelt support for measures designed to combat organised crime and the fact that these measures will undoubtedly assist our law enforcement agencies in that vital task, there is still a real risk that these laws could be open to abuse if not amended. In the course of consultations on the bill, we have had many examples of the great benefit the measures would have in the investigation of the kingpins of organised crime. That is not in dispute. We could hear many more examples and we would agree in each case that unexplained wealth orders would be extremely useful. What we need to hear is what would happen if the innocent were caught up in the process by an overzealous prosecutor. These things can happen. Those of us who have practised law, as I did for many years, have seen them happen. We live in a society where the right to privacy is respected and where ordinary people have the right to live their lives without explaining their lifestyle to the authorities or anyone else, or having their assets frozen or confiscated on nothing more than an officer’s suspicion. This is a society which operates on the rule of law. We on the coalition side will ensure that the rule of law is respected. Organised crime must and will be brought to heel, but it must not be done at the cost of ruining innocent lives.

We are confident that the appropriate balance can be struck. The government amendments are a welcome start. The coalition has further amendments. I am pleased to say that I had a very useful meeting with the Attorney-General, Mr McClelland, and I want to take this opportunity to thank him for his courtesy and the spirit of cooperation with which he dealt with the coalition. The coalition’s amendments, which I foreshadow, are directed to ensuring that the court has a discretion in relation to any unexplained wealth application. This is the single most important safeguard against abuse. In November, in the case of International Finance Trust Company Ltd & Anor v New South Wales Crime Commission & Ors, the High Court struck down the provisions of the New South Wales Criminal Assets Recovery Act, in part because the act provided no discretion in relation to orders similar to those we are considering here. The High Court’s decision in the IFT case illustrates, as well as one could imagine, the importance of ensuring that there are safeguards in this legislation, not merely to protect the rights of the innocent but also to ensure that the legislation is efficacious in its objective of combating serious organised crime. Further amendments will provide for cost orders and undertakings as to damages as a deterrent against bringing ill-founded applications or applications for insufficient reason.

The regime introduced by this bill will be expressly subject to the supervision of the Parliamentary Joint Committee on the Australian Crime Commission. I understand that the government will not oppose these amendments, and I thank them for taking that course. In addition, I will propose amendments that would permit a court to quarantine assets from the scope of an unexplained wealth order or a restraining order so that the respondents can meet reasonable legal costs of resisting an application. The regime proposed by the government would permit only legal aid representation if an order left insufficient funds to pay for the lawyer of a respondent’s choice. I appreciate that the amendments which I am foreshadowing differ from that regime, which is also applicable to general proceeds of crime matters. However, in the coalition’s view, unexplained wealth applications are very materially different in that no specific crime needs to be alleged. Let me emphasise that point: for a person to be subject to an order under this legislation, no specific crime needs to be alleged. That is why the coalition, while of course supporting the sentiment and objective of the bill, approaches the issue of safeguards with particular caution. In these circumstances, where a person is compelled to explain their financial affairs on pain of forfeiture, justice demands that appropriate legal assistance be reasonably available. Subject to those matters, on which I will speak further at the committee stage, the coalition supports the bill.

I will say a word now about the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. This bill contains a large number of amendments covering proceeds of crime, search warrants, witness protection, criminal association, money laundering, Australian Crime Commission powers, bribery and drug trafficking. Time will not permit me to discuss these in any detail at this stage of the debate. A significant number of the proposed amendments have their genesis in reports commissioned by the previous government and have the coalition’s support.

However, certain provisions do raise misgivings. For example, as the bill is drafted, the fact that an impugned relationship is that of lawyer and client is only a defence to a criminal association charge in limited circumstances. That is clearly oppressive. There is also provision for the operation of electronic equipment to obtain access to data on premises entered under a warrant, whether or not the officers suspect that the data contains evidential material. Perhaps most importantly, the offence of criminal association in support of serious organised criminal activity may include facilitating an offence by another person without any intention of doing so, so that the requirement of subjective guilt is absent from the offence.

This bill was considered by the Senate Legal and Constitutional Affairs Legislation Committee in its report of 16 November last year. The committee identified certain matters that required amendment, including those to which I have referred. I am pleased to observe that the government has adopted a number of the committee’s recommendations. The coalition will therefore support the government amendments in the committee stage. However, as the Liberal senators on the Legal and Constitutional Affairs Legislation Committee pointed out, the amendments proposed by these bills ‘ought to be viewed as being at the outer limits of the powers the parliament will countenance for law enforcement agencies’.

The coalition is acutely conscious of the very real danger posed to our society by organised crime. The relevant agencies are convinced that these powers are necessary to tackle that threat. That may well be the case. Coalition senators will be watching carefully, including through close scrutiny at estimates, to ascertain whether that concern is verified in practice so as to justify the unprecedented expansions of police power which this legislation prescribes.