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Thursday, 4 February 2010
Page: 451

Senator LUDLAM (11:30 AM) —I rise to add some comments to those of Senator Brandis on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I listened to his speech with interest and find that the Greens share many of the concerns that the shadow Attorney-General has just expressed. The Australian Crime Commission estimates that organised crime costs Australia in excess of $10 billion every year, placing an enormous burden on our economy and community. Those raw numbers expressed as financial resources go no way towards hinting at the extraordinary human and social cost of organised crime in this country. We share the concern of all parties in this parliament that organised crime should be pursued to the best of our resources and expertise.

We must therefore continually investigate and debate new approaches to combating organised crime. We know that these organisations and networks are continually evolving in line with developments in technology and communications. Our law enforcement agencies must obviously be equipped to respond to these developments and, as such, law reform is warranted to take an adaptive approach to the evolution of criminal networks.

Of course, the severity of organised crime does not warrant undue encroachment on judicial discretion or on fundamental legal principles such as the presumption of innocence, the right to silence and the onus of proof. Nor does the severity of organised crime justify inadequate consultation and rushed reform. Instead, the seriousness of organised crime should provoke model reform practice like that which led to the initial drafting of the Criminal Code.

As everybody in here would agree, we need to strike the right balance. It is just a matter of to what degree we agree on whether that balance has been struck. The fundamental importance of our criminal law principles and the threat of organised crime require adequate debate and consideration by the parliament and indeed in the broader community.

The scope of the reform proposed in this legislation is too broad to be adequately dealt with in a single bill. That is why there is not one but two very complex, detailed and extremely long omnibus bills. They make amendments collectively to the Crimes Act 1914, the Criminal Code Act 1995, the Customs Act 1901, the Family Law Act 1975, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979. There is nothing really that collectively binds this legislation together. It is a loose umbrella grouping of a range of unrelated provisions within the undefined rhetoric of ‘organised crime’.

The proposed amendments alter the core of Commonwealth criminal law and criminal responsibility. In my view, quite inadequate justification has been given for why some of these reforms are needed and why the current law is inadequate. Obviously, with a range of provisions like this coming before the Senate, some of these amendments are technical, some of them are entirely appropriate and innocuous and some of them make good sense. Those are not the ones that I will be concentrating on this afternoon.

The importance of the Senate committee process was demonstrated with the referral of the bill to the Legal and Constitutional Affairs Legislation Committee. We received 13 submissions from diverse groups and we held a public hearing in Melbourne. In our final report, the committee made 13 recommendations. It is disappointing to see the continuation of what is emerging as fairly common practice, in that the government has cherry-picked recommendations of the committee. It has taken up some of them—and we see some of them as amendments today—and it has ignored some of the others.

Since the committee process, the government has introduced 64 amendments to the bill. Some of these are very substantial amendments that require attention and review. A handful of the amendments that the government has brought forward do relate to the work of the committee. Many of them come completely out of left field. The committee has not had time to review them, and now the Senate will be considering and debating these extremely complex provisions that came out of the blue without being subject to the dignity of review by the Legal and Constitutional Affairs Legislation Committee. This has left several key recommendations of the committee completely unaddressed.

I will speak briefly to some of our particular concerns. We welcome supplementary amendments (27) and (28), which require the authorising agency of a controlled operation to provide additional information in its reports to the Ombudsman and to the responsible minister. That is a sensible transparency measure which we support. However, these amendments ignore recommendation 6 in the committee report. This would have required the principal law enforcement officer with respect to a controlled operation to make a report to the chief officer of the law enforcement agency within two months of the completion of the operation. This has not been taken up. This additional reporting requirement would have been an important safeguard and would have better reflected the fact that police corruption is a real issue—it does exist in this country—par-ticularly where controlled operations involve law enforcement officers dealing with illicit drugs or large amounts of money.

The government has also ignored recommendation 10 of the committee’s report, which responds to the joint commission of an offence. Senator Brandis raised this, and it is one of the most important and gravest concerns that we have expressed about this legislation. The committee recommended that an individual not be liable for the joint commission of an offence provided that they have terminated their involvement in the agreement and taken reasonable steps to prevent the commission of the offence. A key part of our concern is that schedule 4, part 1, of the bill, the ‘Joint commission’ chapter, alters chapter 2 of the Commonwealth Criminal Code. This bill therefore alters criminal responsibility at the Commonwealth level, which has flow-on effects for every offence in the Criminal Code, not simply matters limited to organised crime.

These provisions have extremely far-reaching consequences for how the code will be used and interpreted from this day forward across the entire range of offences contained in the code. This is a fundamental alteration of the Criminal Code. It requires further consultation. The government is well aware of the range of highly reputable expert organisations that submitted their concerns on the way through the committee process and outside that process. The proposed amendments go beyond the common-law interpretation of ‘joint criminal enterprise’ and, as such, the significance of these amendments should not be dismissed. I suspect, as we see this debate go forward, that the concerns of those organisations will be dismissed by the government. They are concerns that the government ignores at its peril.

With regard to the threshold for obtaining a preliminary unexplained wealth order, the bill proposes that the court must simply be satisfied that the authorised officer has reasonable grounds to suspect the person has unexplained wealth. It has been suggested that this threshold be raised to ‘reasonable grounds to believe’. This is a strong recommendation, given that the person subject to the order has the burden of proving that his or her wealth was not derived from criminal activity. The supplementary explanatory memorandum states the amendments respond not only to the committee report but to ‘issues identified as a result of ongoing discussions between the Attorney-General’s Department and portfolio agencies’. The parliament is not privy to those discussions that go on behind closed doors and neither is the Legal and Constitutional Affairs Committee nor the community. So many of those amendments have not been through any process of review, and we are now confronting them for the first time.

We have seen a pattern of the Rudd government—and it probably is a holdover from past governments—where on the really difficult issues, whether they be organised crime networks, international terrorism or issues that we will confront when we debate the Crimes Amendment (Working With Children—Criminal History) Bill, there has been a disturbing trend towards the almost casual erosion of fundamental principles of the rule of law. It is the work of this parliament and the work of law reform agencies to confront those difficult issues without necessarily eroding the principles of the rule of law in Australia. I foreshadow support for the opposition amendments. The Greens do not believe that they go far enough, but they have been thought through and I do believe they go some way to addressing some of the concerns we have raised here. As the debate progresses, I just indicate that we will be supporting those opposition amendments. Lastly, I would like to thank the Attorney-General and his staff for briefing us in late 2009. That was greatly appreciated and I look forward to the conclusion of the debate.