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Monday, 7 March 2005
Page: 104

Senator LUDWIG (6:12 PM) —I rise to speak on the National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005. I think it could be described as a bit of essential housekeeping. However, it is an essential area that does require addressing in our nation’s security interests. It is topical that we speak of national security in parliament this evening because I would like to make a few remarks concerning the important national security issue of money laundering as well. The annual US Department of State’s International narcotics control strategy report was released just last week. It contains an analysis of money laundering in various countries around the globe. The Senate will know that money laundering is conducted by both drug dealers and terrorists. This fact highlights the point that when we are talking about terrorist organisations we are dealing with criminals.

I want to bring to the attention of the house some of the findings of that report because it is possible, for example, that a terrorist organisation involved in money laundering could well be subject to the National Security Information (Criminal Proceedings) Act and indeed to some of the measures in the bill that we have before us. The US Department of State have found that Australia is ‘a major money-laundering country’. The state department had this to say about major money-laundering countries, and I quote directly from their report.

“A major money laundering country is defined by statute as one whose financial institutions engage in currency transactions involving significant amounts of proceeds from international narcotics trafficking” ... However, the complex nature of money laundering transactions today makes it difficult in many cases to distinguish the proceeds of narcotics trafficking from the proceeds of other serious crime ... This year’s list of major money laundering countries recognizes this relationship by including all countries and other jurisdictions, whose financial institutions engage in transactions involving significant amounts of proceeds from all serious crime.

The report then goes on to list Australia amongst 52 other jurisdictions, so unfortunately we are not alone. It is a failure of the Howard government in this area. The minister is clearly not doing enough to combat threats to national security, whether they be terrorist or drug related, through the monitoring and seizure of laundered money. Part of this relates to extended review of AUSTRAC, which has been ongoing since late 2003. In my view, it is time for the minister to act and complete this task so that AUSTRAC can know what their operational focus and strategic direction will be so that they can get on with the job of detecting money laundering in our banks.

The bill before us today seeks to clarify that the act will apply to existing proceedings that were already under way as at 11 January 2005, the day on which the main provisions of that act commenced. Secondly, it clarifies the procedure of notification so it is clear that the prosecutor has to give the requisite notice of intention to adduce security sensitive information to the court and defendants on only one occasion. This bill aims to eliminate ambiguities in the existing act on the basis of crown law advice received by the government. The purpose of the existing act was to ensure that the courts and prosecutors could use information that was security sensitive to conduct criminal trials in a way that would balance the defendant’s right to a fair trial with the need to publicly divulge national security information where to do so would be a threat to national security.

The original bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, where I and other senators investigated the bill and made a number of recommendations. It was unfortunate that the Attorney-General failed, as he has on a number of occasions before, to heed all the recommendations made by the committee. That said, several of the committee’s recommendations were taken on board—I should be thankful for that, at least—and are now reflected in the current legislation. However, it was disappointing to see that the Attorney-General consciously chose to ignore most of the recommendations of the Australian Law Reform Commission report entitled Keeping secrets: the protection of classified and security sensitive information in drafting the original legislation. But I will not go into that in the debate on this bill. I think I dealt with that substantively during the second reading debate when the amendments were put forward and the bill debated. It did highlight at the time that the final draft was produced at a time which made it impossible to believe that the Keeping secrets report was taken into consideration at all. It was reflected by the legal and constitutional committee that, by the time we got to look at the bill, a raft of recommendations were made that sought to improve upon the legislation.

I think that, if the Attorney-General and Senator Ellison had turned their minds to this matter a bit more dutifully, if they had been able to examine Keeping secrets in draft, a lot of it could have been done better. They may not have wanted to follow the report—that is a matter for government policy and its direction—but they could have taken it on board and structured a final piece of legislation that was both effective and tight in terms of its legislative drafting. The recommendations that came from the legal and constitutional committee report might not have needed to be so expansive and to cover a range of areas that really should have been dealt with at first blush. That said, Labor supported the thrust of the legislation, and that legislation is now an act. We were able to raise ourselves above the inability of the Attorney-General to get around the real issues that were highlighted in Keeping secrets. We recognised the importance of the issues, we recognised the need for the legislation to be passed and we recognised the improvements that had been made to the bill as a result of the committee process.

As I said at the time, the legislation was not perfect and Labor would have done things differently. Under a Labor government, we would have implemented a new federal protected disclosure regime, which would have included appropriate protections for persons working in the area. However, the need for legislation was clear, for without it we would still be placed in the situation where the Commonwealth prosecutor would effectively be unable to tender security sensitive information in criminal trials where that information would compromise national security. If the law were unchanged, the Commonwealth would simply have to balance the interests of prosecuting the suspected criminal with the interests of national security. It is not a desirable situation when you have to weigh up one worthy goal against another and simply drop the lesser. Instead, it is desirable for the Commonwealth to be free to pursue goals of defending national security while prosecuting suspected criminals. This was the aim of the original legislation.

While we in the Labor Party were not entirely pleased with the legislation, the legislation did pass with our support because we are a party that is concerned with both good government and good governance. We understood that the government needed the legislative tool to get on with the job, and, while we were offering a better tool, we did not stand in the way of the government promoting this legislation or dig in our heels out of spite and do nothing at all. It was far better to accept the position that this legislation was required. That was responsible politics, in my view. We ended up with a compromise, and the legislation was passed. It is now the case that some ambiguities have been picked up, and as a party that takes national security seriously we again recognise the government’s need for our assistance in passing this legislation.

Passage of this bill now clarifies the law in regard to some five existing criminal trials against suspected terrorists. Although it was certainly the intention of the government, it was not entirely clear from the original act whether trials where proceedings had already begun were to be included. These amendments will make that explicit, remove the ambiguity and give all involved in those cases some certainty as to where they stand in relation to the law. Similarly, the tighter description of the process by which requisite notice is given under the act is also a welcome development. On the basis of the above, Labor supports the passage of this bill.