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Monday, 22 February 2016
Page: 616


Senator McKIM (Tasmania) (13:37): This bill makes separate amendments to four acts, as we have heard: the Proceeds of Crime Act 2002, the Criminal Code Act 1995, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and the AusCheck Act 2007. These amendments, at least in part, are in response to recent Victorian Supreme Court and High Court decisions, which highlighted problems with the interpretation and operation of non-conviction based confiscation provisions, specifically sections 315A and 319 of the Proceeds of Crime Act 2002.

Currently, that act allows the Australian Federal Police or the Commonwealth DPP to apply to restrain property where it is suspected of being the proceeds of an indictable offence and have the restrained property forfeited if the court is satisfied on the balance of probabilities that the property is indeed the proceeds of an indictable offence. The key amendment in this schedule is to section 319. This expands the range of grounds on which a court must not stay proceedings. When we looked at this bill, I have to say that it is difficult to understand what grounds would be left on which a court could in fact stay proceedings. We have had major concerns expressed with schedule 1 amendments by the Law Council of Australia, the Australian Human Rights Commission, the Victorian bar and New South Wales Civil Liberties. In fact, the Law Council of Australia and the Australian Human Rights Commission have stated that the amendment to section 319 may be constitutionally invalid, as it may require a court to act in such a way that it would be acting contrary to the interests of justice.

So there have been strong concerns registered about the section 319 amendment which, it is fair to say, significantly expands the range of grounds on which a court must not stay proceedings. The Australian Greens have similar concerns to those expressed by the Law Council of Australia, the Australian Human Rights Commission, the Victorian bar and New South Wales Civil Liberties. Amendments standing in my name are currently being circulated to senators and I want to be very clear that schedule 1 item 4, which repeals section 319 of the Proceeds of Crime Act 2002 and substitutes a new section 319, entitled 'Stay of proceedings', does cause us in the Australian Greens significant concerns. The new section 319 that this bill proposes to insert into the Proceeds of Crime Act 2002 provides that a court must not stay proceeds of crime proceedings on any or all of the following grounds. It goes through and lists a range of grounds in subclauses (2), (3), (4) and (5). These matters cause the Australian Greens so much concern that we will not be supporting these amendments today through the Senate. Amendments that are being circulated standing in my name will provide us, when moved in the committee stages of this bill, the opportunity to vote against those sections and for clarity on referring to schedule 1, item 4, page 4, lines 1 to 31. There would then be another amendment that is also being circulated that, if we were successful, would be consequential to the first amendment.

I want to put this in context. We have seen over recent years a suite of legislative changes that have been made with the purported aim of giving governments more power to fight crime and, in many cases, to fight terrorism. Of course, we want to see governments with a range of reasonable powers at their disposal so that crime and terrorism can be fought, but it is our view in general terms that successive governments, both of Labor and the coalition stripe, have gone too far in these areas. Particularly in the context of antiterrorism legislation we have seen the continued erosion of human and civil rights that many Australians have fought and sometimes died to protect and enhance in the course of our history. Yet we seem to be giving these powers away bit by bit in a death of a thousand cuts—and it is a death of a thousand cuts to natural justice, and we would argue that is the risk in the context of the bill we are discussing today, but it is also a death of a thousand cuts in terms of fundamental civil and human rights that many of us believe need to exist in a 21st-century Western democracy. So the Greens position on this bill needs to be seen in the context of this ongoing erosion of natural justice, the ongoing erosion of fundamental civil and human rights that we have seen in this country particularly in the last 10 or 15 years.

We are concerned that the proposed new section 319 of the Proceeds of Crime Act 2002 could result in proceeds of crime cases proceeding uncontested, because it is eminently foreseeable that a person could end up in the position of forfeiting their property and allowing a proceeds of crime case to proceed uncontested so as to not jeopardise a potential criminal trial that they may be facing down the track. We will, as I said, be moving amendments based on recommendations from the Australian Human Rights Commission and the Law Council of Australia. We believe these amendments are in the interests of natural justice and justice more broadly, because it is fundamental to our justice system that we in this country, when charged with a criminal offence, are innocent until we are properly proven guilty in a relevant court of law. That presumption of innocence is a keystone to our entire justice system that has been handed down through centuries of common law and jurisprudence in Western democracies. It is an incredibly important part of our justice system and of the rights that our citizens hold.

I might add, and senators will become used to hearing me say this, it is time for a bill of rights in this country. We are one of the few Western democracies in the world that does not have a national bill of rights. We have a very good model in Victoria that would inform a bill of rights, and I commit myself in whatever time I have left serving in this place to continuing to advocate and potentially developing and ultimately tabling a bill of rights for Australia so that the Australian people can see very clearly what their rights are as citizens. We hear a lot about our responsibilities as citizens, and rightly so—being a citizen of this fantastic country does confer on us significant responsibilities and we should honour those responsibilities and embrace them. However, we also have significant rights as citizens of this country, and unfortunately we have seen, as I said earlier, a slow drift—and at times, to be frank, a not so slow drift—towards an erosion of some of these fundamental civil and human rights.

Going back into the past, members of my family, and I am sure the families of others here, have served in the Australian armed forces, and in my case in the Second World War my grandfather served in the 1st Australian Light Horse and my grandfather on my mother's side of the family served in a Highland regiment from Scotland—he went to war in a kilt. He was a very brave man, I am sure Senator Cameron would agree. They went to war, at least in part, to defend many of the rights that we are now seeing eroded by governments. I have to say, shamefully, this is a bipartisan position of the coalition and the Labor Party; they seem to rush towards legislative provisions that purportedly make us safer against crime and terror but too frequently there is no evidence presented that they make us any safer at all. We will scrutinise all of the legislation that falls within the anti-crime and anti-terror ambit, and where we think it is appropriate, as we do today in relation to the proposed new section 319, we will be voting against legislation that we think unreasonably tilts the balance and unreasonably and without evidence continues the erosion of civil and human rights and the erosion of natural justice that seems to be happening all too commonly in our country today. If we are not going to stand up for those rights in the Senate and in the Commonwealth parliament, I ask who else is going to defend those rights and where else are they going to be defended? I thank the Law Council of Australia, the Australian Human Rights Commission, the Victorian bar and the New South Wales Council for Civil Liberties for their work on this issue and for expressing significant concerns with some of the provisions in the legislation that is currently before the Senate.

In terms of the constitutionality or otherwise of proposed new section 319, should the matter end up in the High Court that will of course be a matter for their honours in the High Court, but I would be interested, Minister, if you are able to provide in general terms any advice that may have been sought from the Solicitor-General in relation to whether or not that office holds similar concerns—that is, specifically around the proposed new section 319 in the Proceeds of Crime Act. If you are able to provide the Senate with any advice whatsoever on that, that would be gratefully received. For clarity, I know the minister will not table any of the Solicitor-General's advice because that has certainly been a constant position the government has run since I arrived here only a relatively short time ago. But it is fair to say that the Attorney-General has on occasions provided general overview comments around the constitutionality or otherwise of proposals that have come before the Commonwealth parliament, and specifically proposals that have come before the Senate. Are you able to provide any response at all, particularly to the question of whether the Solicitor-General's advice was sought on the constitutionality or otherwise of proposed new section 319 in the Proceeds of Crime Act 2002?

With those comments, I will say that not all of the provisions in this legislation are opposed by the Greens. Our opposition is constrained to the proposed new section 319 in the Proceeds of Crime Act 2002, that is the section that provides a range of grounds on which the court must not stay proceeds-of-crime proceedings. We will be seeking to have this bill considered in committee so that we can register our opposition by voting against the proposed provisions contained on page 4 of schedule (1) lines 1 to 31.