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Wednesday, 13 March 2002
Page: 1112


Mr WILLIAMS (Attorney-General) (10:02 AM) —I move:

That this bill be now read a second time.

The purpose of the Proceeds of Crime Bill 2002 is to greatly strengthen and improve Commonwealth laws for the confiscation of proceeds of crime. The bill also makes special provision for the confiscation of property used in, intended to be used in, or derived from terrorist offences which are a form of organised crime of particular focus since the tragic events in the United States on September 11.

The primary motive for organised crime is profit. Each year in Australia, drug trafficking, money laundering, fraud, people-smuggling and other forms of serious crime generate billions of dollars.

This money is derived at the expense of the rest of the community. It is earned through the harm, suffering, and human misery of others. It is used to finance future criminal activity including terrorism. It is tax free. Criminals have no legal or moral entitlement to the proceeds of their crimes.

The need for strong and effective laws for the confiscation of proceeds of crime is self-evident. The purpose of such laws is to discourage and deter crime by reducing profits; to prevent crime by diminishing the capacity of offenders to finance future criminal activities and to remedy the unjust enrichment of criminals who profit at society's expense. The provisions of the bill relating to freezing and confiscating property associated with terrorism implement relevant parts of the International Convention for the Suppression of the Financing of Terrorism and United Nations Security Council Resolution 1373.

For a number of years, the Commonwealth and all states have had laws enabling proceeds of crime to be confiscated after a conviction has been obtained—conviction based laws. However, these laws have not been fully effective. In particular they have failed to impact upon those at the pinnacle of criminal organisations. With advancements in technology and globalisation, such persons can distance themselves from the individual criminal acts, thereby evading conviction and placing their profits beyond the reach of conviction based laws. In its 1999 report entitled Confiscation that counts, the Australian Law Reform Commission concluded that Commonwealth conviction based laws were inadequate.

Several states and some other countries have now enacted more effective laws enabling proceeds of crime to be frozen and confiscated through civil proceedings, without the need to obtain a conviction. The Commonwealth's confiscation regime is in need of improvement and strengthening.

The Proceeds of Crime Bill 2002, which proposes major changes to our existing conviction based system for confiscating proceeds of serious crime, represents a concrete demonstration of the government's tough stance against organised crime. I am also bringing forward a further bill which not only contains the consequential amendments flowing from this bill and proposes more effective money laundering offences but sets out the arrangements for the phasing out of the existing Proceeds of Crime Act 1987.

The Proceeds of Crime Bill will, if enacted, eventually replace the Proceeds of Crime Act 1987, which will continue to apply to proceedings commenced under that act. For this reason, this bill not only deals with a new civil forfeiture regime broadly similar to that which has been operating in New South Wales since 1997 but includes improved provisions for conviction based confiscation. Although all confiscation proceedings, including those under the Proceeds of Crime Act 1987, are civil proceedings, the term `civil forfeiture' has become widely recognised as a term to describe forfeiture which does not require conviction of a criminal offence as a condition precedent. Civil forfeiture can occur where a court is satisfied that it is more probable than not that a serious offence has been committed. Such a finding by a court does not constitute a conviction and no criminal consequences can flow from it. The provisions are all about accounting for unlawful enrichment in civil proceedings, not the imposition of criminal sanctions. The object or focus of the proceeding is the recovery of assets and profits, not putting people in jail.

This bill also proposes the introduction into Commonwealth legislation of a regime to prevent criminals exploiting their notoriety for commercial purposes. The bill includes provision for literary proceeds orders that can be made—for example, where criminals sell their stories to the media.

The bill re-enacts the existing information gathering powers, including monitoring orders, with some modifications. Such orders provide law enforcement with a real time window in accounts suspected of being used for money laundering. The information obtained under these orders is protected both by the Privacy Act and offences of unlawful disclosure created under the bill which carry penalties of five years imprisonment.

The bill is underpinned by a comprehensive scheme of legal assistance for people whose assets are restrained. Legal assistance in confiscation proceedings will be made a Commonwealth priority under the Commonwealth legal aid guidelines and priorities. Restrained assets are to be ignored for the purposes of the means test. The bill enables legal aid commissions to be reimbursed for the provision of such legal assistance from the restrained assets of the person and, to the extent of any deficiency, from the confiscated assets account. In this way all persons the subject of proceedings under the bill will be able to seek assistance from commissions without impacting adversely on other legal aid priorities.

This bill represents a major overhaul of the Commonwealth's confiscation regime and demonstrates the government's commitment to combating organised crime within Australia and deterring transnational criminals from using Australia as a staging post for their activities. This is particularly important in the Australian and international fight against terrorism.

The bill was released for public comment on 20 July 2001 and the comments received indicate broad support. I am confident that the civil forfeiture regime will have the full support of the opposition given that two bills on this subject were introduced in the last parliament by the then shadow minister for justice and customs. The government has gone further than these opposition bills and enhanced the existing law enforcement powers and confiscation regime, which, together with the initiatives in the Measures to Combat Serious and Organised Crime Act 2001 and the Suppression of the Financing of Terrorism Bill 2002 will provide state-of-the-art tools for the fight against serious crime.

A detailed explanation of the contents of the bill is contained in the explanatory memorandum.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Ms Ellis) adjourned.