Clare O'Neil (Hotham, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

It's a great pleasure to make a contribution to the Unexplained Wealth Legislation Amendment Bill 2018 on behalf of the Labor opposition. We believe that this bill is a step forward in the quest to establish a national unexplained wealth scheme in Australia and that that's a good thing. I don't want to overstate our enthusiasm, because people who have been watching this debate will note that there's only one state that's opted in to be a part of the scheme. That's New South Wales. Nonetheless, anything that enhances the opportunity for us to take the profit out of crime is, in Labor's view, a good thing, and that's why we're supporting the bill before the House.

The reason that we need an unexplained wealth scheme in Australia is because, unfortunately, some of the people who profit the most out of crime are people who are not directly committing crimes themselves. What we often observe in organised crime networks is people sitting at the top who have extraordinary wealth that can't properly be explained by the income that appears to be coming legally into that household. This is an instance where an unexplained wealth order is the perfect way that police forces, whether they be state or federal, can get to the bottom of what is behind this wealth.

Before I turn to the detail of the bill, I want to take the opportunity to acknowledge the incredible agencies that underpin the work that's before the House at the moment. This includes the Australian Federal Police, the Australian Criminal Intelligence Commission, AUSTRAC, state and territory police forces and many other agencies that are in charge of making sure Australians are safe. Australia is one of the safest countries in the world, and that is in large part due to the hard work and dedication of the outstanding people who volunteer to put themselves in harm's way every day so the rest of us can walk the streets of this country safely.

One of the most privileged parts of this role that I have as the shadow minister for justice is having the opportunity to actually meet and speak with these people who work in law enforcement all over the country. I always ask them one question in the conversations that we have: what is one thing that the federal parliament can do to make your job easier and to make you more effective in your quest to make Australia a safer place? Without question, the most common response I get from people is that we need to work harder to take the profit out of crime.

Serious and organised crime is a very significant problem in Australia. Estimates suggest that this is costing our country's economy somewhere around $36 billion every year. The Australian Criminal Intelligence Commission estimates that this equates to somewhere around $1,500 out of every individual Australian's pocket every year. It is an enormous cost to our economy and it adds somewhere around 6.3 per cent to the average cost of living. So this is a very important endeavour to try to ensure that we can better crack down on the people who are committing these crimes and who are creating these problems for us as a country.

Unexplained wealth orders are one mechanism by which the federal parliament can assist police in making sure that they are able to keep our streets safe. The Proceeds of Crime Act is a related legislative regime, but the difference with proceeds of crime is that we first need to prove the commission of an offence before we go after the assets that are the result of that crime. Unexplained wealth orders operate in the other direction. Essentially what we need to do is find a situation where someone has extraordinary wealth that doesn't seem to meet their level of credible income, and we can then go into that person's finances if there is belief that there is proof of a crime to come. These orders are extremely valuable for combating serious organised crime. As I mentioned, often those who are profiting the most from crime are cleverly keeping themselves at arm's length from the actual commission of wrongdoing. That can't be allowed.

Because of constitutional limitations, unexplained wealth orders at the Commonwealth level are quite limited. Of course, members in this parliament will hopefully understand that section 51 of our Constitution limits the powers of our federal parliament, and the residual powers that sit outside the things listed in section 51 sit with the states. The issue with unexplained wealth is that, if no commission of an offence is proven up-front, we can't prove that the federal parliament and the Australian Federal Police should actually have any jurisdiction over the crimes that we believe have been committed. That's why the unexplained wealth regimes work well at a state level but, federally, we haven't been able to prove a substantial use for these laws. That's the reason why creating a national scheme is something that successive governments have been trying to do for quite some time.

There is a lot of agreement in the law enforcement community that not having a national scheme is a problem that needs to be fixed. Two former police commissioners, Mr Ken Moroney AO APM and Mr Mick Palmer AO APM, undertook an independent report of the panel on unexplained wealth in 2014. That report recommended creating a national scheme to address this quite significant need for us to address the issues of unexplained wealth that I have described. The bill would extend the existing Commonwealth unexplained wealth regime to offences that are referred by state governments and relevant offences in the Northern Territory. As I mentioned, Labor will support this bill as it is the first step in a long process towards establishing a national unexplained wealth regime.

I would like to speak about a number of concerns that were expressed by stakeholders through the parliamentary process that this bill has gone through. An unexplained wealth regime does have some issues where well-established principles of law that protect us have to be amended for us to be able to put unexplained wealth laws into our parliamentary context. They are valid concerns—they really are—and that's why I want to draw them out in this discussion. They are things like the abrogation of legal professional privilege, the privilege against self-incrimination, issues around use and derivative use immunity, and immunity from liability. These are all core principles in law that essentially allow individuals to protect themselves from admitting to liability for crimes. In some senses, the unexplained wealth regime probably doesn't technically sit well with those principles.

What I want the stakeholders who have made a contribution to this discussion to understand is that the bill before us is not changing any powers that the federal government has over individuals. It's not changing the powers of police in any way. It's just extending existing powers over new offences. There is a debate to be had, perhaps, about unexplained wealth regimes, but this bill is really not the place to do that. I believe we have a good structure in place and we have some really good protections, too, that are enshrined in law.

One of the protections is a judicial discretion to refuse to grant an order when the amount is less than $100,000. That's a protection under the federal regime. It doesn't exist under a lot of state regimes. What that means is that in some state regimes police can use unexplained wealth orders for what are really quite small crimes. I think the people who have worked on this legislative regime over a long of time have agreed that if we are going to abrogate these legal principles, we're going to do it in cases where we believe there are incredibly serious crimes that have been committed.

That's why, when we talk about unexplained wealth, we're usually talking about a regime that is designed to apprehend the kingpins who sit at the top of organised crime networks, or at least people who are in some way party to organised criminal activities. This is not about someone stealing CDs out of a car and then having their legal rights stripped from them; this is about trying to tackle criminals who are incredibly expert at hiding their crimes. In this chamber, as the people who support law enforcement, we need to help those people who are law enforcers to build a skills set and have a set of legal rights that lets them get behind those networks of bank accounts and assets being put around the world, where we know that criminals are often hiding their money.

The current federal law has the judicial discretion to refuse to grant an order when the amount under question is less than $100,000. Again, this goes to that point about targeting people whose wealth is really quite immense and extreme. There is also judicial discretion to refuse to grant an order when it's not in the general public interest. That's a generalised concern—perhaps for where we have a court which considers, for whatever reason, that the legal rights being abrogated in this regime are not worthwhile for the interests of justice. And there is a judicial discretion to exclude certain property from the scope of the order, or to revoke an order when that is in the public interest or the interests of justice to do so.

So I point out to the parliament and to the very learned people who participate in these debates that while I accept that there are issues with this regime I'm also very confident that the federal law actually provides quite good protections and that they're often better than the protections that are provided by the states. In a sense, we have a Commonwealth regime which is taking some of those powers from the states and establishing them in a national framework. I think that's actually going to enhance the protections for a lot of Australians. The protections that apply to this regime also apply to a broader range of offences—again, supporting that point.

In thinking about whether to support this bill, and given some of the issues that were raised, really, the question for Labor was not, 'Is our national unexplained wealth regime perfect?' but, 'Would we like to see a national model, hopefully, at some stage progressing further, rather than enacting one where we have just one state joining—New South Wales?' The answer to that question is, of course, 'Yes, that's a very desirable thing.'

When I discussed this bill with the Australian Federal Police, they talked to me about some of the specific challenges that they face in tackling serious and organised crime without a national scheme. They were very clear that they do need a national approach to help our agencies catch the kingpins who are profiting from some very genuinely and seriously awful crime. We're talking about drug crime, major fraud syndicates and even human trafficking, often at the end of the line. We are absolutely committed to keeping Australians safe and to providing law enforcement with the powers that they need to do their jobs effectively. For that reason, we will support the bill.

The legislation is a step in the right direction, as I hope I have explained properly to the chamber. I don't see this as a game changer. We've got the framework for a national scheme. We've only got one state that has opted in thus far, but I hope that will change over time. But it's certainly not the beginning and the end of what we need to see being done more effectively when it comes to law enforcement. One of the deep frustrations I've had with the various people on the other side of the chamber who've been in charge of this portfolio is this consistent talking a big game about law and order. But when it comes down to budget time and to doing really fundamental things that are important to keeping Australians safe, such as funding the Australian Federal Police, I find the government falling short.

In the 2018-19 budget, the government cut the AFP's core federal police work by $139 million over the coming four years. We were able to follow that up through the Senate estimates process, asking, 'What does $139 million look like when we're talking about people in uniform who are out on the street protecting Australians?' During that process, the Australian Federal Police commissioner confirmed that this would result in a cut of 567 AFP personnel over the forward estimates. That's because of the Turnbull government's cuts.

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