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Thursday, 28 May 1987
Page: 3570


Mr DUNCAN(8.35) —I can only say that I hope the Liberal Party candidate for the Northern Territory starts his political career and campaigning in these matters with a cleaner slate than the current member for the Northern Territory (Mr Everingham). However, I want to deal specifically with the clauses of the Proceeds of Crime Bill 1987. The principle on which this legislation is based is a very good one. There is a considerable sense of sympathy in the community for the victims of crime and for the need for governments to get back from criminals the proceeds of their misadventures, either to compensate the victims or to offset the cost of investigation and trial, and to ensure that they do not benefit from their misdeeds. There is also an understandable sense of outrage when the Mr Bigs of crime continue to benefit from their ill-gotten gains after their convictions or when they skip the country.

I am more than happy to support the Bill. This legislation will allow the courts to freeze and confiscate property which was used in, or gained directly or indirectly through, criminal activity either in Australia or in other countries with which Australia has agreements under the mutual assistance legislation. It also confers on the police the power to follow the money trail and requires financial institutions to provide information which will enable them to do so. As well, it creates a new offence in relation to the laundering of money and organised fraud.

From my past experience as Attorney-General in the Dunstan Government in South Australia, I know only too well that if these matters are to be adequately tackled, they have to be done at the Commonwealth level. It is virtually impossible for a State government to act alone in this area, as much as any State government might like to. I even have some doubts as to how effective the Commonwealth can be in the area, since the deregulation of the financial system was almost God's gift to money launderers. Nevertheless, if the legislation which is complementary to this-and which we were to debate cognately, I understand-is able to be put into place quickly and effectively, there will be some hope in the success of the measure before us.

Of course, the success of the mutual assistance legislation will depend very much on the success of the negotiations with other governments and the intentions of those governments. It may also depend on further reforms to the national securities and exchange system and, of course, on the willingness of all the States to implement those measures.

There is little doubt that capital is becoming far more internationalised. All governments, this one included, have assisted in this process, and in doing so have made it much more difficult to trace the money trail through the laundering processes converting criminal proceeds to so-called legitimate funds. The interdependence of the international economic system has meant that nation states barely exercise any control over the distribution of wealth, especially when it is hidden in large transnational corporations. It is the diminishing control which governments themselves have in this area which has made it easier and easier for the transfer of funds, with consequent laundering and the subsequent protection of the Mr Bigs who have been involved in organised crime and fraud.

It is worth recalling just a few examples of the ease with which large scale fraud, money laundering and transfer has occurred in Australia in the recent past. Perhaps the biggest of the known frauds was that of the Bartons in New South Wales in the early 1970s. Alexander and Thomas Barton went from being small time shady businessmen to the world of big business. They were able to expatriate millions of dollars overseas and lived on the proceeds of massive frauds in the space of only a few years. Between 1969 and 1972 the Bartons raised some $25.6m through floating public companies. In 1972 they left Australia just as concern was mounting at the performance of their group, leaving $22.6m unaccounted for. After spending time travelling throughout Europe, no doubt enjoying some of the millions they had, they settled in Paraguay. The then New South Wales Liberal Government spent a considerable amount of taxpayers' funds in an unsuccessful effort to extradite them from Paraguay.

More recently we have had the case of one Colin Room, the Tasmanian accountant who managed to defraud his clients of well over $2m. Room got word that he was to be investigated and he managed to spirit both the proceeds and himself out of the country, and he is still strangely at large. There have been numerous rumours of his high living in the United States of America, Europe and South America, and while the cost of the investigations must run into a considerable amount, Room is still at large. Apparently no one knows his present whereabouts.

Now one of the more interesting things about both these cases is the apparent ease with which the persons involved moved among the establishment and big business, and the timing of their disappearances. The Bartons were linked with some of the well known members of the New South Wales business community, and with senior members of the Liberal Party, including the then Attorney-General, whose law firm acted on their behalf. Room not only moved among the establishment, but in Tasmania he was part of it. Many ordinary Tasmanians, no doubt including many of those who lost their savings as a result of his fraud, must be extremely concerned at the secrecy with which the Tasmanian Government is treating that matter.

These are only two of the more notorious cases that come to mind. In the community are thousands of ordinary Australians who have been the victims of criminal activity who are unable to receive any compensation for it, and who must accept that the justice which is meted out by the courts is all that can be done. Of course, these are the lucky ones who actually see a successful prosecution. There are many others who never see justice being done, for whom justice is never done, because the accused absconds. At least with this legislation these ordinary law abiding Australians will be able to see that crime does not pay. I hope that State governments will introduce complementary legislation which also upgrades victims of crimes provisions.

Even though I support this legislation there are a few things about it that I am in an uneasy frame of mind about. Four clauses appear to be reversing the onus of proof, and one appears to overturn the common law principle that a person may refuse to answer self-incriminatory questions. As a civil libertarian I am concerned about these proposals. One in particular seems to me to be very harsh. I refer here to clause 6 (c) (i) which includes in the definition of `abscond', the death of the accused. Others deal with the presumption by the courts that all property gained in a certain period is fraudulently acquired. These provisions are in clauses 19 (6) (c), and 27 (6). Clause 82 reverses the onus of proof for a person charged with receiving. Under clause 48 (5) a person being examined on his affairs by the courts may not refuse to answer questions on the grounds of self-incrimination.

I know that in the fight against organised crime it often appears expedient to introduce exceptions to the general practice of the law. However, I believe quite strongly that the development of the right relating to the presumption of innocence was well founded. It is too easy for a government which does not have to abide by it to indulge in the sort of unsavoury pseudo-legal behaviour which we as a parliament would not condone. No matter what the circumstances, I do not think the presumption of innocence can be faulted. It is a bit like trial by jury. Sometimes things may go wrong, but on balance it is better to trust a group of our peers than to rely on the judgment of one person aided by the full resources of the law. This in no way means that I believe that we should be soft on criminals, especially the Mr Bigs, who are usually the ones who get away with it leaving the small timers to take the rap. On the contrary, I believe that we should bring the full force of the law down on them, and that is what I think this Bill will do when it becomes part of the statutes.

It is high time that legislation such as this was introduced, especially those provisions which require financial institutions to provide information which will enable the money trail to be followed. Only in this way will we be able to have some idea of the ways in which money is laundered, and be able to trace the accomplices in the respectable end of town who are able to live happily off the proceeds of crime with a clear conscience.

As I pointed out earlier, this Bill gives to the police additional powers. This is one of the cases in which I believe that the police have a very real need for new powers, which will enable them to adjust their investigation procedures to bring them in line with modern business technology and practice. That is what is needed if we are to trace the real perpetrators of criminal activity. Most ordinary Australians are law abiding citizens who are rightly upset by the contempt in which they are held by those Mr Bigs of organised crime, who hide under the cloak of respectability while getting away with criminal activities. Unfortunately, the real criminals in our society are not the small time occasional crooks who, through economic circumstances, turn to crime. I do not condone their activities, but I think that they are in some respects less to be condemned than the big time criminals. The people I am talking about are the Bartons and the Rooms in the community who, under the protection of the establishment, are able to defraud ordinary Australians, who are the big drug pushers, and who continually undermine the morals of our community with their hypocritical and anti-social behaviour. This legislation will at last give us the power to start to tackle crime at the highest levels, where it is organised, and for that reason I support it strongly.