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Thursday, 5 February 2009
Page: 544


Mr NEUMANN (11:18 AM) —Anyone who practises as a lawyer or as a litigant involving business records knows the challenges of dealing with business records. Business records are in a category all their own in terms of evidence. Often opinion is expressed in those records and often you cannot identify who has drafted the business records, who has put pen to paper, who has typed on the keys to collate those business records. So there is often hearsay involved. Getting evidence adduced in terms of business records is difficult. It is difficult to know who to cross-examine. Courts are notoriously loath to allow business records to be admitted into evidence, and it frustrates litigants and lawyers incredibly. As someone who practised in civil and criminal law for many years before coming to this place, I had many cases involving foreign evidence from Asia, Africa and the United States, and getting evidence was difficult. Making sure it complied with all the technicalities of Queensland jurisdiction and Commonwealth jurisdiction was also a challenge.

The main purpose of the Foreign Evidence Amendment Bill 2008 is to streamline procedures so that we can adduce business records as evidence in Australian court proceedings. Initially, it is to do with criminal and civil matters involving the Commonwealth, but I would hope that the state and territory proceedings will also come within the province of this type of legislation and that agreement can be reached with the states and territories so that we have a uniform system in this country with respect to evidence.

Rules and regulations under the Family Court, the Federal Court, the Federal Magistrates Service and the civil courts in Queensland—where I come from—all deal with business records, so it is important that we get this right, and the reason for that can be summed up in this way: nothing causes constituents in my area more aggravation than people not paying their way. I subscribe to the view of the father for the Minister for Trade, the former Treasurer of this country, Frank Crean, who once said words to the effect of, ‘Paying tax is the way we civilise society.’ By paying tax we pay for hospitals and care for the sick. We educate our children. We care for our aged. So the purpose of this legislation is to ensure that Australians who are trying to evade taxation are compelled to pay their way. That means the Australian taxpayers can be confident in the integrity of our taxation system.

Whilst the legislation is known as the Foreign Evidence Amendment Bill 2008, it is all about taxation. It is all about government revenue, and it is all about making people pay their fair share to support the Australian community. Part 3 of the Foreign Evidence Act provides a means of adducing foreign material, such as business records, in response to a mutual assistance request to a foreign country, as evidenced in Australian criminal and related civil proceedings.

Currently the act requires that the business records must comply with the rules of evidence in the foreign jurisdiction and also with the very technical, evidentiary rules which vary between the states and territories of Australia. The bill before the House today ensures that those technical problems can be overcome and that the evidence can be adduced and is presumed to be admissible unless the courts are satisfied the records are not reliable and have probity or are privileged. That is a very good, flexible amendment. It will improve the transparency and efficiency of our court system and ensure that evidence can be adduced. Overcoming the requirement that the taking of foreign evidence had to be on oath or affirmation is also a good provision and means that, if someone is under a legal obligation to tell the truth, the evidence can be adduced here in Australia. So there are a number of great initiatives. Also in part 3 there is some clarification that really brings the legislation into the 21st century by changing definitions of audio and video tape to ‘a tape, disk or other device from which sounds or images are capable of being reproduced’ to recognise that we now live in a computer age with all the advances of technology, about which I am sure our children know better than we who sit in this House.

The purpose of this particular legislation can be summed up by two words: Operation Wickenby. It is interesting that the Commissioner of Taxation, when he appeared before the Joint Committee of Public Accounts and Audit on 3 October 2008, said that he expected an extra $5.7 billion over the next four years in relation to that particular operation. That is what this legislation is all about: improving the prospect of the ATO obtaining further moneys to improve the integrity of our taxation system. The Howard government and this government are to be commended for the way in which they have supported the Australian Taxation Office, the Australian Crime Commission, ASIC and other regulatory bodies with respect to Operation Wickenby, which commenced in 2004. As I said, its aim is to minimise tax evasion. In a submission put to the US Senate Homeland Security and Governmental Affairs Committee for a hearing into tax haven banks and US tax compliance conducted by their permanent Subcommittee on Investigations on 17 July 2008, the Australian Taxation Office made some very pertinent comments and points which I will refer to. It noted that the OECD estimates that between US$5 trillion and US$7 trillion is held in tax havens or banking secrecy jurisdictions.

The Australian Transaction Reports and Analysis Centre, AUSTRAC, and Australia’s Financial Intelligence Unit, FIU, have sophisticated capabilities to track international monetary flows. In the financial year ending 30 June 2007 it is estimated that $16 billion was sent directly to tax havens from Australia and approximately $18 billion was sent directly from tax havens to Australia. Those are extraordinary sums of money. It is probably also the case that, with nearly a million Australians living overseas and with 45 per cent of people living in this country either having one parent born overseas or having been born overseas themselves, funds and assets are held offshore, often legitimately. But it is quite sad that at times people have to resort to these types of tactics to avoid their obligations to their fellow citizens.

Offshore evasion is a concern internationally. There are a number of factors which mitigate the risk here in Australia: our geographical isolation, the existence of AUSTRAC, vigilance of governments of both persuasions, our lack of an inheritance tax or gift duty, the relative size of flow of funds from Australia to tax havens compared to other countries, the generally law-abiding aspects of the Australian people and the ethics and morality that we have in this country, and the message that the Australian Taxation Office has sent from Operation Wickenby and other activities. But we must always be concerned about concealment.

Operation Wickenby is really a multiagency taskforce and it has engaged in a huge investigation—a $300 million tax fraud inquiry into offshore accounts. There have been dozens of people charged. A message must be sent to those people who are abusing tax havens and engaging in dodgy tax schemes and to those individuals and businesses using the cash economy in a way to avoid meeting their obligations to their fellow citizens and companies to not engage in these activities, to refrain from these types of activities, and that they will be punished severely when they engage in these types of activities. The Commissioner of Taxation has written over 3,500 letters to people in the last year asking them to disclose overseas interest. In excess of 820 disclosures have been made and $35 million or more of previously undisclosed income has been disclosed. This is a huge operation which we must support. The Foreign Evidence Act 1994 and the amendments to it in this bill are about supporting the Australian Taxation Office in its endeavours.

I believe that constituents in my electorate strongly support these types of measures. They strongly expect that other Australians will pay their way and contribute to building roads, hospitals, schools, community centres and a fair and just Australia. This legislation will go a long way to ensuring that our regulatory bodies undertake the kind of investigation and prosecution which must be undertaken to maintain, in a very difficult time, the kind of lifestyle that we enjoy in this country. I am very pleased to speak on this bill and I commend it to everyone.