Karen McNamara (Dobell, Liberal Party) Share this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015, a bill which improves and provides further clarification to Commonwealth justice arrangements. The bill makes important amendments to 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. The amendments are a multi-faceted approach to improvements that will, through the five schedules included, further enhance the abilities of Commonwealth investigative and prosecutorial bodies to operate and gather intelligence, target and confiscate proceeds of crime, and provide overall improvements to their administrative efficacy.

Schedule 1 of the bill will amend the Proceeds of Crime Act 2002—the POC Act—to elucidate the functions of the non-conviction based confiscation system provided for in this act. The non-conviction based scheme of forfeiting proceeds of crime was introduced in 2002 after the Confiscation that counts report by the Australian Law Reform Commission noted the Commonwealth's conviction-based proceeds of crime laws were deficient. Through advanced technology and globalisation, people at the head of criminal organisations could separate themselves from individual acts of crime, thereby avoiding criminal conviction and keeping their profits from crime out of reach of conviction based laws.

The POC Act provides for a scheme to trace, restrain and confiscate the proceeds and instruments of, and benefits gained from, Commonwealth and foreign indictable offences, as well as certain offences against state and territory law. The confiscated property may later, if a court is satisfied on the balance of probability that the property consists of proceeds of crime, be forfeited. The non-conviction based scheme will operate in addition to the conviction based forfeiture scheme. Within the POC Act, new subsections under section 319 clarify whether a court may or may not grant a stay. The provision is a particular reflection of the parliament's intention that the non-conviction based scheme may operate concurrently with criminal proceedings in motion. Concurrent civil and criminal proceedings are possible and therefore require specific consideration of the individual circumstances and associated risks of prejudice in order to determine if a stay is able to be granted. The amendments to the POC Act also reinforce protections against the disclosure and use of material related to the confiscation proceedings in subsequent criminal proceedings. There are safeguards against prejudice where a person is facing both proceeds of crime and criminal proceedings.

Schedule 2 of the bill makes amendments to the Criminal Code Act 1995—that is, the Criminal Code—to create new offences that relate to the falsification of accounting documents. The two amendments have been implemented to ensure we fulfil our obligation as party to the Organisation for Economic Cooperation and Development's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions—more simply known as the OECD antibribery convention. Article 8 of the OECD antibribery convention requires that parties create offences of false accounting for the purposes of concealing or enabling bribes to a foreign public official.

To date, Australia has relied upon section 286—that is, the obligation to keep financial records—and section 1307 on the falsification of books of the Corporations Act 2001 and similar state and territory offences to combat false accounting and demonstrate adherence to article 8 of the convention. Upon review in 2012, however, it was found that Australia was not fully implementing the requirements of article 8 as the OECD's working group on bribery found that the provisions either did not apply to a wide enough range of circumstances or did not apply adequate sanctions.

There are two new offences in the new division 490 of the Criminal Code that enforce dealing with accounting documents. They apply in instances where a person makes, alters, destroys or conceals an accounting document or where a person fails to make or alter an accounting document that the person is under a duty to make or alter with the intention that the person's conduct would facilitate, conceal or disguise the receiving or giving of a benefit that is not legitimately due or a loss that is not legitimately incurred. The second offence allows for the same as the first offence; however, it takes into consideration 'recklessness' as opposed to 'intention'. The penalties for these offences are proportionate to the seriousness of the offence—namely, the penalty for recklessness is half that of intentionally falsifying accounting documents.

Schedule 3 of the bill amends the Criminal Code part 9.1 in relation to serious drug offences. The amendments to the definition of 'drug analogue' will remove ambiguities to ensure the integrity of serious drug offences. It also clarifies that the terms 'addition' and 'replacement' have their ordinary meaning, not their scientific meaning.

Listed controlled and border controlled drugs are substances listed by their chemical structure. This alteration is necessary to ensure that all substances that are structurally similar to listed controlled and border controlled drugs, known as 'drug analogues', are captured. It ensures that the manufacturers of listed controlled and border controlled drugs are unable to avoid prosecution under the Criminal Code.

The Criminal Code contains offences relating to the manufacture of controlled drugs, defining 'manufacture' to be any process by which a substance is produced other than the cultivation of a plant and states that the processes of extracting or refining a substance and of transforming one substance into another are included in the meaning of 'manufacture'. The amendments contained in schedule 3 of this bill, however, will make it clear that a process which converts a substance from one form into another will fall within the meaning of 'manufacture'. This means that the Criminal Code will capture processes that change the form of a substance—for example, from a liquid to a powder or from a powder into a pill—but do not necessarily change the chemical structure of the existing substance.

The changes included in schedule 3 are a continuation of the government's commitment to take a tough stance on serious and organised crime, particularly drug crime. The current epidemic of the drug ice in Australia, about which I have spoken on many occasions, is testament to the necessity of these changes. We in government need to do everything we can to ensure that the manufacturers and peddlers of illicit drugs are able to be prosecuted with the full weight of the law.

Continued vigilance and support for our law enforcement and prosecution agencies is essential to being tough on people who commit crimes. The more we equip Australia's law enforcement and prosecution agencies, the more they can work to thwart the supply and manufacture of the illicit drugs that are causing so much destruction in communities.

That includes communities such as my electorate of Dobell, where I regularly hear of the destruction of families and relationships due to the use of illicit drugs, particularly ice. The family and friends of a 25-year-old woman are mourning the loss of her life after she consumed ecstasy at the Stereosonic festival in Sydney. Another woman, aged 22, escaped with her life after she was rushed to hospital in a coma. She had likewise consumed ecstasy. Despite a heavy police presence at the festival, these young people, along with many others, still rolled the dice with illicit drugs and risked their lives. Another 120 young people were treated at the festival for the effects of illicit drugs. As a government, we are committed to doing everything we can to stop the manufacture and supply of illicit drugs, because one less manufacturer could mean a life saved.

Schedule 4 of this bill provides further explanations to and addresses operational constraints that have been identified by law enforcement agencies in relation to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The amendments enable a wider range of designated officials and agencies to access and share information obtained under the AML/CTF Act. Specifically, the definition of 'foreign law enforcement agencies' will be extended to include Interpol and Europol. There is a provision for a regulation-making power to enable additional international bodies to be prescribed in the future, although this will remain subject to parliamentary scrutiny.

This is to the benefit of Australia's relationship with foreign countries and international organisations, enabling efficient and effective cooperation in the investigation of transnational and multijurisdictional crime. The present definition of 'foreign for enforcement agency' means AUSTRAC information is only able to be shared with the government body that has responsibility for law enforcement in a foreign country or part thereof. It does not extend to international law enforcement coordination and cooperation bodies that are comprised of multiple member countries. The amendments included in schedule 4 of the bill address these issues.

The bill also amends the secrecy and access provision of the AML/CTF Act to ensure that entrusted investigating officials have clear authority to make external disclosures of information and documents obtained under the act where such disclosure is done for the purposes of or in connection with the performance of the duties and functions of their office. This includes investigative purposes such as disclosures in relation to obtaining warrants. It enables certain designated persons to obtain further information and documents through written notice, implementing international standards set by the Financial Action Task Force requiring competent authorities to obtain documents and information for use in investigations, prosecutions and related actions pertaining to money laundering and terrorist financing.

Schedule 5 of the bill makes amendment to the AusCheck Act 2007, specifically enabling AusCheck to directly share information with state and territory government agencies and a broader range of Commonwealth agencies which are performing law enforcement and national security functions. This rectifies present restrictions where AusCheck is unable to share information with Commonwealth authorities that have functions relating to law enforcement or national security.

State and territory agencies are presently unable to access AusCheck information, which is contradictory, given the significant role these agencies play in law enforcement and national security. The government recognises the necessity of having a collaborative approach to law enforcement and national security, particularly given our present high terror-threat rating. We need to combat threats across state and territory borders and ensure that the relevant law enforcement and national security operations have access to the information they require.

AusCheck scheme personal information includes information relating to an individual's identity and information obtained as a result of an AusCheck national security background check. This information can include criminal history, matters relevant to a security assessment under the Australian Security Intelligence Organisation Act 1979 and information relating to an individual's citizenship status, residency status and entitlement to work in Australia. Naturally, the disclosure of this information will remain subject to robust safeguards and guidelines, including the criminal offences outlined in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme personal information, which carry penalties of up to two years imprisonment.

AusCheck issues privacy notices to applicants advising them about how their information will be used and to acquire consent for the collection and disclosure of their personal information. AusCheck has memoranda of understanding in place with relevant authorities that include the key principles and obligations relating to the sharing of personal information. The sharing of information will still be limited to functions that relate to law enforcement or national security.

This bill is a sensible approach to ensuring that we, as a government, have clear legislative frameworks to enhance the ability of Commonwealth and other agencies to work effectively to combat crime and prosecute criminal offences. The sharing of relevant information between relevant agencies will enhance our law enforcement across state and territory borders and ensure that we remain ever vigilant in matters of national security and the war against illicit drugs.

I congratulate the Minister for Justice for his extensive work in presenting this bill, and I commend this bill to the House.

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