Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

I will deal at this stage—given the discussion that we had last night on these matters—specifically with Labor's position on these amendments. By that I mean amendments (1) and (2) on sheet 7839. But firstly I would like to welcome Senator Canavan to his new position. He was not here last night when we were having this discussion, but it might assist the committee stage consideration if the government's position is outlined now that the amendment has actually been moved.

Let me say that from the Labor Party's position, sadly, if we wait for a commission to be secured in a court, the experience of our law enforcement agencies is that the proceeds of crime have been long transferred into new structures and asset classes and the task of confiscating them has become more difficult, if not impossible altogether. This is the mischief that these provisions seek to remedy. The point of seizing the proceeds of crime at the juncture supported by this bill is precisely so as to seize them before a criminal, or an alleged criminal, has the time and opportunity to hide them. As the Attorney-General's Department stated during the committee inquiry into this bill:

Non-conviction based forfeiture is a vital tool in the fight against serious and organised crime, countering the techniques that senior members of organised crime syndicates use to insulate themselves from criminal prosecution, and disrupting and dismantling serious and organised crime groups.

While we take the concerns raised regarding the fundamental rights and constitutional principles that may be impacted by the proposed amendments in the bill seriously, we are cognisant of the importance of an effective proceeds of crime regime in combating serious crime and those who profit from that crime. We note that the government and the Attorney-General's Department developed the proposed amendments in consultation with key stakeholders and with a view to striking an appropriate balance between effectively combating crime and respecting the fundamental rights and principles underlying Australia's criminal justice system.

Let me go briefly to the committee report. Senator McKim was quite right last night when he indicated that the fact that the Greens did not contribute any additional remarks or a dissenting report to this committee does not bind them in their position in the committee stage. However, during this discussion I would like to go to the areas that deal with this issue and some of the concerns that Senator McKim has raised. In particular, I take the committee to paragraph 1.16, which is on page 3 of the report, where the committee indicates that the explanatory memorandum:

… states that the grounds set out in subsection 319(2) are 'designed to prevent a respondent from claiming merely a generalised "risk" of prejudice to support a stay of proceedings', which would 'have flow-on effects on the availability of evidence, would impede the operation of the non-conviction based scheme and would frustrate the objects of the PoC Act'.

But let me go further, given some of Senator McKim's comments and some of the assurances that came out of the committee's consideration. For instance, at paragraph 1.19, the report indicates that the explanatory memorandum:

… states that the list of matters in subsection 319(6) 'is not a closed list …

as we discussed last night. It goes on to say:

… and does not prevent the court from considering other issues in its determination of the interests of justice'.

It might assist Senator McKim if a minister were prepared to highlight this issue in the second reading contribution, because that would have an interpretive effect in relation to how this is subsequently read in court.

Let me go on further to paragraph 1.20, which says:

A note is inserted after new subsection 319(6) to give examples of orders the court could make to address any potential prejudice resulting from not staying PoC Act proceedings ...

Again, this is highlighting alternative remedies to the issues that Senator McKim is raising. It goes on to say:

These include appropriate orders for the non-disclosure of evidence, or hearing the proceedings in closed court under new section 319A proposed in the bill, which provides that a court may order PoC Act proceedings to be heard in whole or part in closed court, if the court considers that necessary to prevent interference with the administration of criminal justice.

My response to Senator McKim is that some of the issues he has quite rightly raised were, as he mentioned, also raised by the Law Council and the Human Rights Commission. Labor have weighed them up, and we have determined that, from our point of view, the balance is appropriate to deal with the need of our law enforcement agencies to challenge this mischief. On that basis, Labor will be supporting the bill as drafted and do not support the amendments proposed in sheet 7839 as circulated by the Greens.