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Thursday, 5 February 2009
Page: 539

Mr MARLES (10:52 AM) —I rise to speak in support of the Foreign Evidence Amendment Bill 2008, which will make it easier to conduct criminal prosecutions in this country which involve the taking and obtaining of evidence in relation to overseas activities. In particular, it will allow for a far easier prosecution of white-collar crime in Australia where that criminal activity has involved overseas activities. The bill will do this by streamlining the process by which we adduce foreign business records into evidence in a domestic proceeding. Business records are a key part of any white-collar criminal prosecution. They provide a rich source of information in a criminal prosecution and that information is often highly reliable and highly relevant.

Currently, the Foreign Evidence Act is inadequate in allowing all relevant foreign business records which exist to be considered as evidence in a prosecution in an Australian court. So this bill will make it easier, principally, for that evidence to be brought before an Australian court to therefore allow for prosecution. Some very significant prosecutions and activities are currently underway, which I will come to in a moment, and this legislation will help provide the basis for all the necessary information being considered in those prosecutions.

Clause 24(4) of the proposed bill provides a presumption that foreign business records can be adduced into a proceeding in Australia, unless it is found that those business records are not probative, not reliable or, for some reason, are privileged documents. That is a much wider ambit in terms of considering foreign business records in a domestic criminal prosecution than that which currently exists under the Foreign Evidence Act.

The proposed bill will also make it easier to admit testimony obtained overseas, again, in a domestic proceeding. Paragraph 22(1)(aa) of the proposed bill will make it possible to admit into evidence, in a domestic proceeding, testimony which is obtained overseas, provided that it is obtained and received in circumstances where the person giving the testimony is doing so under a legal obligation to tell the truth. That may be in cases even where no formal oath is given to that person before the testimony is provided. Indeed, clause 22(3) of the proposed bill provides for a presumption that testimony obtained overseas will be able to be used in a domestic proceeding, unless there is evidence to the contrary—that is, that the testimony was provided under a legal obligation to tell the truth.

These two provisions are a significant extension of the ability for a domestic court to consider evidence originating from overseas. So, concurrently with that—in a sense, as a check in relation to that—clause 24A of the proposed bill also provides a much greater discretion to the court in not accepting that evidence. It is, if you like, a check on this new, wider ability to review that evidence. It puts that discretion, obviously, in the hands of the court. So, in a sense, it creates a much greater ability to consider information deriving from overseas but puts the court in the driver’s seat as to whether or not to use its discretion to accept it. Of course, that discretion is based on whether or not the acceptance of the evidence originating from overseas would unfairly prejudice a party.

A number of other minor amendments are contained in this bill which are also important in terms of allowing greater evidence originating from overseas to be considered in an Australian court. There is, for example, in the proposed bill a provision which provides that references to evidence which is a recording by audio or video means be extended to include recordings which are made by more modern means of recording. There is a clarification that the Attorney-General’s certification of foreign material is limited to what was originally intended—that is, a certification that the foreign material was obtained in response to a mutual assistance request made under the Foreign Evidence Act. That, of course, is what the act originally intended to provide in terms of the Attorney-General’s certification.

The Foreign Evidence Act currently applies to Commonwealth courts, to state and territory courts, to criminal prosecutions and to related civil proceedings. That said, this amending legislation will only apply, at least initially, to Commonwealth criminal proceedings and related civil proceedings, with a view to it covering state and territory courts in the future, where those state and territories agree to or want this additional ability to obtain overseas evidence and to apply it to proceedings within their jurisdictions.

Tax evasion by taking money overseas is a very big deal for this country. Indeed, in terms of its tax receipts, Australia loses billions of dollars as a result of this activity. Operation Wickenby, an operation conducted by the Australian Taxation Office, is indeed the largest tax investigation operation ever undertaken by them. It began four years ago and it is directed exactly at overseas tax evasion by Australians. It is estimated, in the next four years, to recover $5.7 billion of Australian government revenue. Indeed, in just the last few weeks there have been extradition proceedings undertaken, pursuant to Operation Wickenby.

I mention Operation Wickenby in the context of this bill because Operation Wickenby needs this bill. The provisions which are currently in the Foreign Evidence Act do not provide enough of a basis for having all the information that can possibly be obtained and which is relevant to prosecutions under Operation Wickenby, so it is essential that we pass this bill so as to put the proper legislative basis in place to allow all the relevant information to be obtained so that prosecutions under Operation Wickenby, and indeed all criminal prosecutions and related civil proceedings, can consider all the relevant information available.

Labor has always been concerned with white-collar crime. We have always been concerned to make sure that there is the proper legislative basis to ensure that white-collar criminals can be prosecuted. Indeed, the Foreign Evidence Act itself was initially an initiative of the Keating government back in 1994, implemented at the time by the Attorney-General, Michael Lavarch, and by the honourable member for Denison, the Minister for Justice at the time, Duncan Kerr. The principles then were as they are now. The Foreign Evidence Act then was put in place to facilitate and streamline the admissibility of evidence originating from overseas in domestic proceedings. Indeed, if one looks at the second reading speech for the original act, which was at that point the Foreign Evidence Bill 1993, it reads as follows:

Part 4 of the bill sets out a similar scheme, adapted to meet the specific needs of the Australian Securities Commission in civil proceedings arising from the Corporations Law and the ASC law where the ASC is a litigant. The part will facilitate the admissibility of foreign evidence in such proceedings. The globalisation of capital markets in the past few years has required business regulatory agencies such as the ASC to liaise and offer assistance to each other in carrying out their regulatory functions. This will often result in requests by the ASC to foreign agencies for information, testimony and documents where the ASC is involved in civil proceedings.

Sixteen years down the track, that process of globalisation has gone forward in leaps and bounds. The world that we now live in and the financial transactions which occur are far more complex now than they were then, and it would also be right to say that the activities of white-collar criminals have become increasingly canny and increasingly complex. It is essential, then, that we have a legislative regime which keeps up with this changing world. The Foreign Evidence Amendment Bill 2008 is a bill which will do just that: make sure that the Foreign Evidence Act keeps up with the world around it.