George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I rise to speak on the Mutual Assistance in Criminal Matters (Registration of Foreign Proceeds of Crime Orders) Amendment Bill 2011. The coalition supports the purpose of this bill, which is to address potential constitutional issues with Australia's current legislative framework for registering proceeds of crime orders. The coalition supports the aim of the amend­ments, which is to ensure that the framework for providing assistance to foreign countries and international tribunals in registering proceeds of crime orders issued by them continues to operate as intended.

It should be acknowledged that the Commonwealth Proceeds of Crime Act 2002 was introduced, and passed, under the former coalition government. The act provides a scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. The act allows in some circumstances for it to be used to confiscate the proceeds of crime against foreign law or the proceeds of crime against state laws. The act also permits confiscated funds to be returned to the Australian community in an effort to prevent and reduce the harmful effects of crime in Australia.

The act was the result of a review which found that the inclusion of civil forfeiture at a federal level would vastly extend the capacity to recover funds from breaches of federal law. The coalition supports the policy of confiscation of assets and profit derived from crimes committed overseas. In this context, I regret that it is still necessary to raise the issue of the convicted terrorist David Hicks. Mr Hicks was convicted of a terrorism related crime on his own plea of guilty in the United States. His memoir Guantanamo: My Journey is estimated to have generated about $350,000 in earnings for Mr Hicks in its initial print run. This is a matter I have raised on numerous occasions in Senate estimates and I am mystified still that no action has been taken to ensure that Mr Hicks does not profit from activity that, on any objective assessment, was seriously criminal and, by his own admission, related to the support of terrorism. The only thing the government will say is that it has commenced an investigation into the applicability of the legislation for Mr Hicks's publication that details his support for, and participation in, a terrorist organisation.

Part 2-5 of the Proceeds of Crime Act provides for the making of a 'literary proceeds order' where a person has committed an indictable offence against either Australian or foreign law and the court is satisfied that the person has derived 'literary proceeds' in relation to the offence. The offence to which Hicks pleaded guilty under the Military Commissions Act of the United States clearly falls within the definition of 'foreign indictable offence' under the Proceeds of Crime Act. The failure of the government to pursue the matter is symptomatic of its slowness to act and its inability to make difficult decisions, preferring instead to brush an issue under the carpet until someone drags it out and confronts them with it. Even then, the government will prevaricate and delay. So I use the occasion of the second reading debate on this bill to once again call upon the government to take the action available to it against Hicks and, in particular, to call upon the Attorney-General to issue the instruction which he is enabled to issue under section 8 of the Director of Public Prosecutions Act to require the commencement of appropriate literary proceeds proceedings under the Proceeds of Crime Act.

Having said that, let me turn to some of the provisions of the bill currently before the Senate. Australia has a regime to permit cooperation with foreign countries in criminal matters, which includes the restraint and confiscation of benefits derived from foreign criminal offences where those assets are located in Australia. Part VI of the Mutual Assistance in Criminal Matters Act 1987 enables an Australian court to register and enforce orders issued by a foreign court. These foreign orders comprise restraining, confiscation and pecuniary penalty orders over property derived from serious criminal offences. Once a foreign order is registered in Australia, it is able to be enforced as though it were an Australian order made under the Proceeds of Crime Act. Provisions in the International Criminal Court Act 2002 and the International War Crimes Tribunals Act 1995 expand upon the regime in the Mutual Assistance Act and allow an Australian court to register and impose forfeiture orders issued by the International Criminal Court and designated international war crimes tribunals.

The need for this legislation arises from the High Court's decision in the case of International Finance Trust Company Ltd v New South Wales Crime Commission (2009). The court found provisions in the New South Wales proceeds of crime legislation which allowed for ex parte restraining orders to be invalid because they dictated to the New South Wales Supreme Court to a degree inconsistent with its status as a chapter 3 court under the Constitution. Under the New South Wales legislation the court had no discretion whether to hear from a person affected by the order, and there was no statutory provision available which allowed the person affected to challenge the making of the order.

The High Court's decision reinforced the principle that courts must be in a position to exercise control over the making or enforcement of proceeds of crime orders. Because there are similar mandatory provisions in the relevant Commonwealth legislation, there is an obvious need for the amendments proposed by this bill so that the Commonwealth legislative scheme does not fall foul of the High Court's decision. The amendments in this bill aim to ensure that the legislative regime providing a court with the power to register and enforce foreign orders continues to function as intended—that is, in conformity with what the High Court decided in the International Finance Trust Company case.

The bill will make technical but important amendments to the Mutual Assistance Act, the International Criminal Court Act and the International War Crimes Tribunal Act. The amendments will allow a court greater discretion when deciding whether a foreign order should be registered and enforced in Australia and whether or not to hear an application for registration on an ex parte basis. The amended provisions will require a court to register a foreign order unless it considers it would be contrary to the interests of justice to do so. In deciding whether registration of a foreign order is in the interests of justice, the court is to give due regard to the primary intention of the system. The bill will also insert an objects clause into subdivision A of part VI of the Mutual Assistance Act in order to clarify the intention of this system. The purpose of the subdivision is to allow Australia to give effect to foreign orders in circumstances where property related to serious foreign offences is located in Australia.

These amendments aim to bolster reciprocity as the basis of international crime cooperation. They aim to ensure Australia is able to provide the same level of assistance to other countries as we would expect of them. As I have foreshadowed, the amend­ments proposed by this bill are necessary and desirable. More than that, they are probably essential to the continued operation of the proceeds of crime regime as it applies to mutual assistance matters. Accordingly, they have the coalition's support.