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

I rise to speak in support of the Proceeds of Crime Amendment (Proceeds and Other Matters) Bill 2017. I speak on behalf of the opposition today, and I can tell the chamber that Labor will be supporting the amendments in this bill. In my role as the shadow justice minister I have the great privilege of spending a lot of time with people who work in law enforcement. When I ask them what is the one thing that the federal parliament can do to assist them in keeping the Australian community safer, they always tell me that the best thing we can do is try to take more of the profit out of crime. That's why we're so supportive of the amendments that are before the chamber today, which make some technical, although quite important, adjustments to the regime that exists in Australian law.

The notion of attempting to take the profit out of crime is one that has existed in law for a very long time. In fact, if we look right back to feudal times, there were laws in place that attempted to do this. Then, in more recent times, the English had in rem forfeiture laws. The Proceeds of Crime Act is derived from that long history. The object of our proceeds of crime regime is to deny the perpetrators of crime the profits and the instruments of their crimes. In doing so, it suppresses criminal activity and returns the proceeds of crime back to society. We're the great beneficiaries of that in representing communities around Australia. Each year we see the federal government retain somewhere in the tens of millions of dollars from the proceeds of crime. Some of us have been lucky enough to see that money redistributed in our communities to keep those communities safer.

Labor always takes the opportunity to speak when the Proceeds of Crime Act comes before this chamber, because this was actually a Labor government invention. The Proceeds of Crime Act was first introduced by the Hawke Labor government. At the time, the then Attorney-General, Lionel Bowen, aptly noted that:

… major crime, particularly drug trafficking and serious fraud on the revenue, is growing and is becoming increasingly international in scope. Traditional methods of punishment by imprisonment and fine are not enough.

Mr Bowen was quite right. Since the Proceeds of Crime Act was first introduced by Labor just over 30 years ago, serious and organised crime has become truly transnational in scope, perhaps more so than Mr Bowen could ever really have imagined. Today, criminals use technology to coordinate and commit crimes across the globe and to evade law enforcement. They exploit the massive increase in the international movement of people and goods to transfer assets, and they wash money through accounts across the world. This is making the job of law enforcement harder than ever.

In my meetings with police they often talk about the increasing complexity they see in the financial and legal arrangements that are made to hide the proceeds of crime. If there is any hint of a loophole or a vulnerability in the laws that relate to seizing the proceeds of crime, there are people committing crimes in this country who know about it and are exploiting it. That's why it's so important that we continue to make updates to the Proceeds of Crime Act. In fact, this is the second since I took on the role of shadow justice minister.

The bill before us would make a number of technical amendments to the Proceeds of Crime Act to close loopholes in our regime that have been identified in recent case law. There are two specific cases that adjustments in the bill before us seek to take account of. The first is the Commissioner of Australian Federal Police v Huang in the Western Australian Supreme Court. The second is the Commissioner of the Australian Federal Police v Hart in the Queensland Court of Appeal.

The bill before us would, firstly, ensure that the Commonwealth unexplained wealth regime covers situations in which wealth is derived or realised directly or indirectly from certain offences. Secondly, the bill would clarify that property becomes proceeds or an instrument of an offence under the act when proceeds or an instrument are used to improve the property or discharge an encumbrance or security or liability incurred in relation to that property. That's probably a pretty complicated way of getting to the legislative issues at hand, but what it really means is that, if someone uses legal means to provide, for example, a down payment on a house but then uses the proceeds of crime to pay off the mortgage on that house, the amendments before us clarify that that house would indeed be considered the proceeds of crime. Before these amendments were made, it was a bit unclear about whether the house itself could be considered proceeds of crime, even if, for example, 70 or 80 per cent of the house was paid off in mortgage repayments that were clearly the proceeds of crime.

There were some issues raised through the committee process that considered the detail of this bill. One of the points that I think was made quite well in the report that came from that committee process was that there are quite a lot of protections under the Proceeds of Crime Act that will assist in making sure that the adjustments being made in this bill don't adversely affect members of the community. For example, courts will still have the powers that they had previously to refuse to issue a restraining order on property if that would not be in the public interest. It is, in a sense, a catch-all for the interests of justice. The court still retains the power to revoke a restraining order where the restraining order was made without the respondent being present, and allowances can be made for expenses to be made out of property covered by a restraining order. Most importantly, the Proceeds of Crime Act covers a general protection under subsection 34(3), which means that people who are using the proceeds of crime but don't know they are using the proceeds of crime are protected under the act. The common example that's used in this situation is perhaps a partner who is in a relationship with someone who is committing crimes that they are not aware of. If they have somehow benefited from property, then that property generally isn't considered to be the proceeds of crime. That's important, because the intention of this act is to target criminals and not other people who are in their world.

The main concerns about the amendments that are before the House were raised by the Law Council of Australia, and I want to make a few comments about the submission that they made to the Senate Legal and Constitutional Affairs Legislation Committee. Labor has the greatest respect for the Law Council of Australia. We work with them very closely on lots of aspects of the work that we do. That's why I want to talk about the concerns that they raised. The Law Council queried the adequacy of the existing protections in the Proceeds of Crime Act, and I mentioned some of those previously in my statement. Specifically, their concern is the prohibition on compensation orders in circumstances in which property is an instrument of an offence. They also expressed concerns about the absence of the proportionality test between the benefits said to be derived from an offence and the point at which something is therefore regarded as proceeds or an instrument of an offence.

It's getting pretty technical, and the reason for that is that it's a very technical area of law. But what it really means is that the Law Council is concerned that, if someone uses 80 per cent legitimate means to fund a house but 20 per cent illegitimate means, then that whole house will then be considered proceeds of crime. We had a very constructive meeting with the department, with the government and with law enforcement about these issues, and I believe that the government has adequately dealt with some of the concerns that were raised by the Law Council. For this reason, we are going to support the bill unamended. Labor believes that, just as it is important to ensure that there are no loopholes in our proceeds of crime and unexplained wealth orders, it's also important that we ensure that there are no loopholes in the protections that we afford to individuals who are affected by the operation of this scheme. So, we're very open to continued improvements for the proceeds of crime regime and will be happy to work with the government on any further improvements that come through their processes.

I want to make some brief comments about the general issue of how crime's being prosecuted in Australia. We do support the objects and measures contained in this bill because the profit of crime comes at the expense of all Australians. We know that serious and organised crime in Australia is estimated to cost somewhere around $36 billion each year. The Australian Crime and Intelligence Commission has estimated that it is somewhere around $1,500 out of every Australian's pocket every year, due to people who are in many instances committing fraud on a grand scale. Preventing serious and organised crime is not just a question of community safety but also one of basic fairness. We are all paying taxes into the tax system. We just cannot allow that tax system and the expenditure that comes from it to be so corrupted.

If we want to close this gap and if we want to take the profit out of crime, we need more than just strong laws. And, if there's one crucial thing that I've learned in the justice portfolio, it is that having strong laws is simply not enough to take the benefits out of crime and to make our community safe. We also need sufficient resourcing to law enforcement to make sure that these laws work. I have constant discussions with stakeholders in which the tone of the conversation is, 'We don't want law reform; we don't want the parliament to put more things down on paper; we actually need more police so we can make sure that the provisions which are there to protect Australians are being properly utilised.'

That's why Labor has been so deeply disappointed to see the government's cuts to the Australian Federal Police. We saw in the last budget $184 million cut from the Australian Federal Police, and in that last year alone we lost 151 AFP personnel. When I talk to law enforcement across the country I hear a really clear message, and that is that their job is getting more difficult, not less difficult, over time. One of the biggest challenges they face is responding to this increasingly sophisticated use of technology that crime syndicates are undertaking. And I think it's extraordinary that the government has decided to cut funding and staff to the AFP at this very challenging time for law enforcement. Unlike the government, we believe it's more important than ever to ensure that we support the expertise and incredible dedication that we see from AFP officers. I think there'll be more of this to come in the year ahead.

But, returning to the Proceeds of Crime Act amendment, Labor's very proud to support this bill and the measures it contains to close loopholes in our proceeds of crime regime. We believe that no person should be entitled to profit from any unlawful or criminal conduct. When the Proceeds of Crime Bill was first introduced, in 1987, Lionel Bowen described it as 'the most effective weaponry against major crime ever introduced into this parliament', and Labor is committed to making sure it remains so.

Debate adjourned.