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Monday, 22 February 2016
Page: 744

Senator IAN MACDONALD (Queensland) (21:00): When this debate was interrupted by question time some hours ago I was talking about the report of the Senate Legal and Constitutional Affairs Legislation Committee looking into the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015. We had reached a stage where I was indicating the committee's view on new proposed section 319. Senator McKim, who is a member of the committee and who discussed this in his contribution, indicated that the Greens had some difficulty with this and would be moving amendments. I might say that these were amendments and issues that were not raised with the committee when it tabled what I assumed was a unanimous report but which has turned out, from what the Greens have told us, not to be so. I was indicating that the new proposed section 319 said that a court may under the Proceeds of Crime Act delay any proceedings if the court considers it to be in the interests of justice to do so. But then proposed section 319(2) said that a court may not stay any proceedings on any of the grounds listed, and Senator McKim has gone through those.

I will just reiterate what I was saying when the debate was interrupted, and that is that these grounds set out in proposed subsection (2) are designed to prevent a respondent from claiming merely a generalised risk of prejudice to support a stay of proceedings which would have flow-on effects for the availability of evidence, would impede the operation of the non-conviction based scheme and would frustrate the objects of the Proceeds of Crime Act. I was indicating that this is all about serious criminal activity by organised criminal gangs and by terrorists, and the government is introducing this amending bill as part of its overall fight against crime, particularly organised crime, and crime that supports terrorism around the world.

I do not want to keep the Senate too long but I can refer senators interested in this particular piece of legislation to the report of the committee, which has been tabled in the parliament. There were a number of interesting matters raised by the committee. I refer senators to the amended definition of 'manufacture' in proposed section 305.1(1) which specifies that it includes any process other than cultivation of a plant by which a substance is produced, extracted, refined or transformed into a different substance or converted from one form to another. That amendment responds to a 2013 case in the Victorian Court of Appeal where it interpreted the definition of 'manufacture' to require that the process produce a new substance, not merely convert a substance from one form into another. It is these sorts of legal technicalities that some of this bill is introduced to address.

This bill was looked at by the Scrutiny of Bills Committee—and that has been referred to by previous speakers—a well as the Senate Legal and Constitutional Affairs Legislation Committee. The committee has gone into the bill in some detail. I will mention just some parts of the committee's investigation in relation to the civil forfeiture scheme. The committee took seriously the concerns raised in submissions regarding the fundamental rights and constitutional principles that may be impacted on by these proposed amendments, but at the same time the committee was cognisant of the importance of an effective proceeds of crime regime in combating serious crime and those who benefit from crime, as emphasised by the department and supported by a number of other submitters.

The committee acknowledged the department's advice that these amendments were developed in consultation with key stakeholders, with a view to striking the appropriate balance between effectively combating crime on the one hand and on the other hand respecting the fundamental rights and principles underlying the Australian criminal justice system. The committee noted that the amended legislation will, if necessary, be tested in the courts, which the committee believes will be well placed to determine the questions of constitutionality and fundamental rights that have been raised in this inquiry.

I draw the Senate's attention to the section of the bill relating to intention and recklessness. The committee joins submitters from both within and outside government in welcoming these proposed new offences which will not only support Australia's compliance with its international obligations but go further in helping combat a range of financial crimes. The committee regarded the breadth of the proposed offences and the potentially serious penalties for those who commit them as appropriate in the circumstances.

The committee looked at the possibility of retrospectivity in relation to schedules 4 and 5. The Law Council had raised a concern about the potential with retrospective operation of both those schedules to permit the use and disclosure of personal information collected prior to the passage of the bill. The department, when questioned about this, did not agree with the Law Council's concern that the provisions may have retrospective effect, stating that the proposed amendment does not seek to retrospectively alter legal rights or obligations; it simply seeks to provide legislative certainty regarding the scope of existing powers under the money laundering act. The department advised that AUSTRAC already provided information about access to and disclosure of information on its website.

I might say that the committee always looks closely at possible retrospective impacts—they are something that I personally believe are anathema to any parliament. In this instance the committee was satisfied by the department's explanation that the legislative certainty and clarity for information sharing by AUSTRAC and AusCheck with other agencies would be achieved by schedules 4 and 5. The department emphasised the importance of the interagency information sharing for the work of the Australian Border Force, including in light of its counterterrorism role and the detection of increasing attempts to take undeclared currency out of Australia.

In all, the committee was of the view that the bill, because it seeks to combat a number of serious and complex criminal activities within Commonwealth jurisdiction, including organised crime, bribery and duplicitous financial conduct, trade in illicit drugs, money laundering and financing of terrorism, deserved the support of the parliament.

In concluding I emphasise that this is all part of the government's ongoing campaign against serious organised crime and the financing of terrorism. The committee did have some queries, which we raised in writing with the department, but with the assistance of the information and clarifications provided by the department and others on these questions the committee is satisfied that the bill strikes the appropriate balance within each of its legislative schemes, bearing in mind the important matters of criminal justice and national security that are at stake. For those reasons the committee recommended that the bill be passed. I urge upon the Senate a consideration and acceptance of the committee's recommendations.