Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 deals with a number of measures, all of which are unrelated. I think that is a relatively disappointing aspect of it. It lumps together all of these things, some of which are benign and technical amendments but some of which require greater attention in the parliament. I will touch on each of the measures contained within this bill and explain the coalition's hesitation to support all of these measures without some further examination.

Schedule 1 includes amendments to ensure the effective operation of the Australian Commission for Law Enforcement Integrity. As stated in the bill's explanatory memorandum, the purpose of this schedule is to amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and the Law Enforcement Integrity Commissioner Act 2006. By doing this the bill seeks to improve the Integrity Commissioner's ability to access information held by the Australian Transaction Reports and Analysis Centre and to improve the ability of the Australian Commission for Law Enforcement Integrity to second employees of police forces who are not sworn police officers. This appears to be a relatively sensible thing for the government to be pursuing.

Amendments contained within schedule 2 seek to support victims of slavery, slavery-like offences and people trafficking offences. The bill amends the Crimes Act and chapter 8 of the Criminal Code to ensure that victims and witnesses in Commonwealth criminal proceedings are afforded appropriate support and protection. This measure does enjoy the full support of the coalition, and any measures that we can take as a parliament to improve the prosecution and to support victims of what are very heinous crimes should be welcomed by all members in this place.

Schedule 3 seeks to make amendments regarding people smuggling. This particular schedule is of concern to the coalition. I will come back to our concerns once I have gone through the other couple of schedules.

Schedule 4 makes amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The purpose of these anti-money-laundering amendments to the act is to ensure that review of decisions of the Australian Transaction Reports and Analysis Centre is efficient and effective, strengthen existing offences and add the Clean Energy Regulator and the Integrity Commissioner of Tasmania as designated agencies. Schedule 4 amends the act to strengthen the Commonwealth anti-money-laundering legislation and counterterrorism finance and legislative framework.

Schedule 5 seeks to make amendments to facilitate assistance to the United Nations Mechanism for International Criminal Tribunals. This schedule of the bill will amend the International War Crimes Tribunals Act 1995 and the International Transfer of Prisoners Act 1997 to recognise the United Nations Residual Mechanism for International Criminal Tribunals. This is a reasonable amendment that ensures Australia can continue to provide assistance to these tribunals and therefore has the support of the coalition.

Schedule 6 contains miscellaneous amendments including updates to the Australian Federal Police Act 1979 in relation to the provision of policing and regulatory services in the external territories. The AFP Act currently provides that the minister responsible for the AFP and the administrator of an external territory may enter into arrangements for the provision of police and regulatory services in that external territory. This no longer reflects the governance arrangements for some of the external territories whose responsibility for policy decisions and arrangements for the provision of services now rests with the minister responsible for these territories. The purpose of these amendments is to update the AFP Act so that the minister responsible for the AFP may enter into arrangements with either the administrator or the minister responsible for an external territory. This has happened on the back of the fact that the government has changed the minister responsible for external territories; therefore, this just follows up on some of the administrative arrangements required for policing, particularly in an emergency situation, within any of Australia's external territories. Although most of the schedules contained within this bill do not trouble the coalition, schedule 3, which deals with people smuggling, does need to be further investigated by the Senate and that is what we are recommending happens.

As I mentioned earlier, the coalition holds concerns regarding schedule 3. This part of the bill proposes to ensure that the prosecution bears the onus of proof in establishing age, and removes references to wrist X-rays in the Crimes Act 1914 from materials that can be used to determine age. Item 1 of Schedule 3 omits the words 'a photograph (including X-ray photograph) or any other record or information' from the Crimes Act, and substitutes 'a record of information'.

The bill's explanatory memorandum says:

The intention of this item is to remove X-ray photographs from the definition of age determination information. This amendment is necessary to respond to concerns about the accuracy of wrist X-ray materials in making a determination in relation to a person's age.

Additionally, the bill makes a number of technical and enabling amendments to streamline investigations and prosecutions for people-smuggling crew, which appear quite sensible, but which will need to be further investigated by a Senate committee.

I wish to address this matter relating to wrist x-rays a little further. The government is putting forward an argument that the use of wrist x-rays to determine age has been widely discredited. However, there are vastly differing opinions on this matter, and the coalition is hesitant to approve the government's rushed amendments when we have not had a chance to fully examine this bill in great detail, given it was introduced in the last sitting fortnight.

The government has put forward the argument that the Senate Legal and Constitutional Affairs Committee in its inquiry into the Crimes Amendment (Fairness for Minors) Bill 2011 determined that the use of wrist x-rays has been discredited. However, the Australian Federal Police, on 6 June 2011, issued a clarification regarding the process used to determine the age of alleged people smugglers. The AFP said:

The current age determination process requires a wrist x-ray to be undertaken on all persons who claim to be a juvenile. The process involves utilising the Radiographic Atlas of Skeletal Development of the Hand and Wrist.

The AFP relies upon an independent medical expert to interpret the x-ray and determine the age of the person. The test provides an assessment of age between 11 and 19 years. The AFP relies upon the report that is then generated by the medical expert determining the age of the person. Where a person tests at 19 years of age, the AFP will typically proceed with the charging of this person as an adult in accordance with the Commonwealth Director of Public Prosecution's prosecution policy of the Commonwealth, and a brief of evidence is submitted by the AFP to the Commonwealth Director of Public Prosecutions. This method of age determination has been tested and successful before Australian courts of law.

On 6 December 2011, the then Minister for Home Affairs, Brendan O'Connor, announced that he had discussed the age determination process for people-smuggling crew with Indonesian ministers and officials as part of a visit to Jakarta. After discussions with the Indonesians, Minister O'Connor stated on 7 December 2011:

What we have made very clear to the Indonesian government is that we will set in place an administrative arrangement where the matter is not referred to the AFP but there will be a determination by the Department of Immigration and Citizenship, and then the International Office of Migration will accompany those minors home as quickly as possible.

In Senate estimates on 14 February 2012, the AFP confirmed the new procedural changes that occurred following the minister's discussions with Indonesia. Following the changes, if the Department of Immigration and Citizenship makes a determination that a crew member on a people-smuggling vessel is a juvenile, they are not referred to the AFP and the person is usually voluntarily deported.

The AFP also confirmed at the estimates hearing that if the crew member was assessed by DIAC to be an adult they would be referred to the AFP for investigation. These changes made by the government do not appear to be well considered. As a result, any further changes they seek to make in the use of wrist X-rays need to be thoroughly examined. This government has a history of making ill considered policy and legislative blunders, particularly in relation to people-smuggling, which is why we in the opposition believe it would be prudent for the Senate committee to examine this bill in greater detail—as we have not been allowed enough time to consider this rather large bill that contains these many divergent measures.

I want to conclude by saying that the coalition does not oppose the passage of the bill through the House. However, as I said, we believe that some of the issues should be examined further by a Senate committee and reserve the right to move amendments in the Senate pending recommendations made by that committee. I know that we are in the final sitting fortnight of this parliament, mercifully for the Australian people, but it would be wise if the government would allow the Senate to have due consideration of what is contained within this bill. Most of the measures would seem to be relatively uncontroversial, although they are many and varied. In fact, it might have been better handled by the government if some of these measures were contained within different bills, because they really bear no relationship to one another at all. In particular, we are concerned about removing the wrist X-ray from the age identification process for people smugglers.

Clearly, we want to be able to have some sort of mechanism that allows law enforcement officials to make some sensible determination of age, and of course that is not necessarily easy to do. The wrist X-ray, although it is subject to debate, is one way that we can reasonably do that. I would be particularly interested in what the Senate committee would find out about the use of wrist X-rays. Obviously that could inform the discussions that the Senate has in any proposed amendments, if they were to come up in that place. On that note, I will leave it there. I hope that the government will see a normal and sensible time frame through for a bill of this nature, particularly considering it contains such a diverse range of measures.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I join in support of the passage of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill in the House. The bill makes a number of significant improvements with respect to Commonwealth criminal law—for instance, to ensure greater protection of witnesses and victims, particularly with respect to proceedings under the federal act in relation to slavery and people-trafficking issues. The bill makes relevant amendments to ensure that we are responsive to the threats of national security and strengthen laws in relation to people smuggling.

When it comes to amendments relating to victim and witness protection in criminal proceedings, this bill extends the protections currently available to child witnesses in federal criminal proceedings to adult victims and special witnesses, particularly with respect to slavery and human trafficking matters. With respect to proceedings for slavery, slavery-like and human trafficking offences, the bill will also amend the Criminal Code Act 1995 to allow courts to hear evidence by video link from witnesses outside Australia. I have spoken a number of times in this place about my strong views against heinous crimes against humanity, particularly when it comes to slavery and human trafficking. This bill will ensure that witnesses in criminal proceedings receive the highest level of support and protection. Witnesses are vital to these proceedings and every effort should be taken to ensure they are protected from possible re-traumatisation or fear for their safety and undue public embarrassment due to their involvement in any such proceedings. We just heard a little about the Migration Act 1958. This bill also amends the Migration Act. It contains certain changes in regulating the process of investigating, prosecuting and sentencing people smugglers. The amendment will also ensure that the onus of proof in establishing the age of a people smuggler lies with the prosecution. To date wrist X-rays have been used to determine whether a person is a juvenile or an adult. As I understand it, great concern has been expressed over the accuracy of the X-ray methods for determining age. So it is considered appropriate that it falls on the prosecution to establish, through appropriate investigative means, the age of the person being charged.

A whole series of things can be taking into consideration. The vast majority of young people who are X-rayed are from Indonesia, and it is appropriate that the Australian Federal Police, in the conduct of their investigations, liaise with their Indonesian counterparts with a view to determining, positively, the ages of the persons charged, as opposed simply to relying on the validity of wrist X-rays.

We were all, once again, distressed last week when we learnt of another 55 people from an asylum-seeker boat dying at sea.

The measures in this bill are not, in any way, meant to frustrate the investigation or prosecution of persons involved in people smuggling. If anything, they are meant to mainstream the activities in those investigations and the way that they are carried out. One thing that always sticks in my mind when we talk about people smuggling is that every boat that we hear of—whether it has arrived on our shores or is likely to be lost at sea—is a million-dollar profit centre. Not one of these vessels is operated for altruistic motives. As I said, these vessels, operate on the basis of a $1 million profit per vessel.

So the people-smuggling trade is alive and well. It exploits the vulnerable and it does not give guarantees of arrival in Australia, despite what people might think. These unscrupulous people smugglers play on the concerns of vulnerable people to get them to part with their money in order to arrange a passage.

When I was in Indonesia I had the opportunity to speak not only with the Australian Federal Police over there but with their Indonesian counterparts. I know full well about the way some of these operations have been established. I know that in many instances the vessels are commissioned. The people on the vessels are provided with a compass. A mobile phone, pre-dialled with the number of the Australian authorities, is given to them. They are told how long they should be at sea before they dial the number.

The people who are running these operations take very few risks. One of the things that was also clearly established when I was there is that the people smugglers have a preference for recruiting very young people to crew these vessels, on the basis that if they are young enough they will be returned and avoid criminal prosecution. So it is in determining the age of these crew members it is in our interest to work with the Indonesians on these matters.

Very briefly, I would like to talk about the Telecommunications (Interception and Access) Act 1979, which is also amended by this legislation, particularly with respect to new public sector anti-corruption arrangements in Victoria. On many occasions I have spoken in this place about the value of telecommunication interception. It is a very powerful tool in contemporary law enforcement, particularly at this time, when police are being challenged in terms of technology by those operating on the other side of the fence. Gone are the days when we would refer to the crooks as poor, uneducated people with limited resources to make good their crimes. A lot of planning and a lot of technology goes into the developing of a criminal enterprise. This amendment allows police not only to intercept telecommunication information but, more importantly, to disrupt and prevent the commissioning of a crime. For every crime that is committed one thing is certain; there is always a victim. Telecommunications interception is one of the most powerful tools that we have currently in law enforcement in terms of disrupting and preventing criminal enterprise.

One of the things that I have also learnt is that while criminals are everything that we think they are, they are also businesspeople. They are out there with a very clear profit motive and they are going to exploit that. If we have loopholes in our legislation that apply from one state to another, you can expect those loopholes to be exploited by those who operate criminal enterprise. This moves to shut down one of those areas of inconsistency that apply and the way they apply in the state of Victoria. I know the minister is here, and I might let him go ahead and sum up. I think I am the last speaker, but in relation to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the amendments it makes to AUSTRAC are very good, particularly in addressing the issues of involving the Clean Energy Regulator. The AFP have been flagging that as an area of potential involvement of organised crime for some time. To involve the Clean Energy Regulator and ensure that the jurisdiction of the Australian Commissioner for Law Enforcement Integrity has oversight of that, as well as allowing the Integrity Commissioner of Tasmania to be able to access AUSTRAC material, are very good.

This bill shows that the government is serious about looking at the vast suite of arrangements necessary to combat serious and organised crime. My friend might have been a little forgiving when he wanted to make a complaint about certain parts of this legislation because it is many and varied. What this shows is that we are ensuring that changes are made where changes need to be made to ensure that our law enforcement agencies have access to the best suite of technology necessary to do the job that we require them to do and protect our communities.

Mark Dreyfus (Isaacs, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I would like to thank members for their contributions to the debate on the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013. This bill delivers on Australian government priorities to combat corruption, protect vulnerable witnesses and victims, and strengthen Australia's response to people smuggling. It contains a range of measures that will improve powers to investigate corruption within Commonwealth law enforcement agencies, support victims and witnesses during criminal proceedings, and contains new measures to deter people smuggling. These measures include removing references to wrist X-rays as a prescribed procedure for determining whether people-smuggling crew are minors and clarifying that the prosecution bears the onus of proof in establishing age where age is contested during a prosecution.

The member for Stirling suggested that there should be some further inquiry or examination of these measures. This is not necessary. The member for Stirling should note that there have already been two inquiries into this area and that these amendments address recommendations made by both. In particular, these measures address recommendations made by the Senate Legal and Constitutional Affairs References Committee report into the detention of Indonesian minors in Australia, and the Senate Legal and Constitutional Affairs Legislation Committee's report into the Crimes Amendment (Fairness for Minors) Bill 2011. One could add that they address recommendations made by the Australian Human Rights Commission's report of the inquiry into the treatment of individuals suspected of people-smuggling offences who say that they are children.

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 will extend support to witnesses in Commonwealth criminal proceedings who are vulnerable either due to the nature of the offence or due to personal circumstances such as age, background or disability. These protections will apply automatically to victims of human trafficking, slavery and slavery like offences such as forced marriage. These protections will include the ability to give evidence by closed-circuit television, video recording or video link, and to have a support person accompany the witness when giving evidence.

The bill will also allow the Integrity Commissioner authority to access information held by AUSTRAC in relation to investigations of corruption to ensure that such investigations are not inhibited by current privacy and secrecy provisions in Commonwealth legislation. The bill introduces a number of technical and enabling measures to ensure that investigation and prosecution of people-smuggling offences is efficient and fair, including by allowing personnel assigned to border protection command to issue evidentiary certificates in relation to factual matters, and ensuring time spent in immigration detention by people-smuggling offenders is taken into account at sentencing.

The bill will amend Australia's anti-money-laundering regime to strengthen existing offences, to ensure the effective review of AUSTRAC decisions and to provide relevant agencies with access to AUSTRAC data. The bill will also make a number of amendments to ensure the currency of Commonwealth law in relation to international criminal tribunals, provision of policing services in external territories and references in telecommunications interception legislation.

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 reflects an important step towards ensuring the integrity of Australia's law enforcement agencies and the protection of vulnerable witnesses and ensures that Australia's criminal laws remain current. I commend the bill to the house.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.