David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise to speak to the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024. That is perhaps one of the most inspiring long titles for a bill we've had come before the house! This is a miscellaneous bill that makes a number of some modest, some slightly less modest changes to legislation.

It includes expressly authorising police when executing search warrants issued under the 1914 Crimes Act or the 2002 Proceeds of Crimes Act to also seize digital assets such as cryptocurrency, including by accessing a person's digital wallet and transferring its contents to a state account. This is a timely and important change. As we have seen in multiple reports, aspects of organised crime have changed some of their financing—in some cases, much of their financing—into these crypto assets, and it makes no sense, if we are to have the Proceeds of Crimes Act, for those assets to be beyond the reach of police when they're executing search warrants. Without this power, of course, that fund can simply be transferred or it can remain in the wallet and not be accessible by the proceeds of crime legislation.

The bill also extends the investigative and freezing powers under the 2002 Proceeds of Crimes Act that currently apply to financial institutions to also extend them to digital currency exchanges. For the same reasons as the earlier amendments are supported, the Greens also support these amendments. It makes sense and reflects the changing nature of organised crime and how money is hidden and laundered through digital currencies.

I will just pause to note that we often hear the AFP talk up the numbers of proceeds-of-crime seizures and the like. They talk around $20 million. Sometimes they talk, over a decade, in the hundreds of millions. I think we should acknowledge that when we're talking about the scale of organised crime, much of it around drugs, that is a tiny fraction of the problem. If anyone thinks proceeds-of-crime legislation is the primary way in which we're going to deal with the scale of the problem of financing for organised crime, they haven't been watching. These changes will make a marginal change. There will be instances where some funds that have been obtained through organised crime will now be able to be seized, but this is in no way a systemic solution to the scale of organised crime, much of which lies in addressing the completely broken way we deal with drugs and addiction in this country.

The bill also seeks to increase the value of the Commonwealth penalty unit. It increases it from the recently upped $313 per unit to now $330 per unit. Thankfully, there were some amendments in the Federation Chamber that clarified that the increases to the penalty unit clause only take effect from the commencement of this legislation, rather than from 1 July. The concept was that the bill, as initially drafted, having come from the Attorney-General's office, would retrospectively increase the penalty units for criminal offences. It's remarkable that retrospective increasing of criminal penalties ever got through the AG's office. But, thankfully, that's now been remedied through an amendment in the Federation Chamber.

While the Greens recognise it's standard practice to increase Commonwealth penalty units over time so that they keep pace with inflation, what we have seen from both this government and the former government have been aggressive, repeated increases in the value of a penalty unit. We know that people are doing it extremely tough right now. We know that there's a cost-of-living crisis. We know that individuals, in particular, are finding it hard to make ends meet. So I think the government owes the public an explanation for why, from 2017 to now 2024, the value of a penalty unit has increased by 54 per cent and the bulk of that, under this government, while inflation over the same time is less than half of that, just over 20 per cent. So how is it that the cost of a penalty unit, which is meant to be broadly indexed to inflation, has increased by 54 per cent while inflation has increased by less than half of that? The bulk of that happened under this government's watch. The explanation we got in the second reading contribution by the Attorney in the other place did not explain that. Perhaps that's because there is no adequate explanation for it other than it's a revenue gouge disguised as an inflationary measure. But I think the public deserve an explanation, as this chamber deserves an explanation, from the government about that aggressive increase in penalty units.

I want to be clear from the Greens perspective that the way in which penalty units and fines operate in the criminal justice system at a Commonwealth level—and it's reflected in most of the states and territories, save for New South Wales, and I'll speak to that briefly—create a two-tiered justice system. It means that, if you're wealthy and you have financial resources, the fine is often almost negligible. It doesn't impact on your life. It doesn't impact on your lifestyle. Although it may be unpleasant to pay a fine of hundreds or thousands of dollars, people who are wealthy roll on as though little, if anything, happened, whereas, for people who are trying to survive on Centrelink payments or a Commonwealth benefit or pension, if they get a fine in the hundreds or thousands of dollars it's financially disastrous for them. It means they have trouble affording the next trolley of groceries in the supermarket. It means that they're wondering whether they'll pay the energy bill or the phone bill. They're wondering if they can defer the rates notice. They're wondering if they can afford the rent. That's the difference.

When we have this one-size-fits-all fines system, those who are wealthy just brush it off and get on. They can commit offences, with almost no impact on their life. But those who are financially struggling are doubly penalised with these fines that could be absolutely financially disastrous to them. That's not a justice system; that's an injustice system. And it's gotten worse with this legislation that is, again, ramping up the size of penalty units.

That is why I move a second reading amendment that's been distributed:

At the end of the motion, add ", but the Senate:

(a) notes that the bill seeks to increase the value of the Commonwealth penalty unit;

(b) recognises that set financial penalties produce unfair and uneven impacts when they are not levied according to income, so that people on high incomes can easily afford to pay a fine that would be financially crippling to someone on Commonwealth income support such as Jobseeker or the aged pension; and

(c) urges the Government to explore a fairer system for fines that would reduce penalty amounts for those on Commonwealth income support, and increase penalty amounts for those earning over $180,000 a year".

If the criminal justice system strives to be at least slightly fair, then fines should have the same effective impact on people whether they're wealthy or not. And the way you do that is by looking to countries like Norway, which has its fine system graduated against income. Under their fines system, the wealthier you are, the higher the fine you pay for the same offence.

Thankfully, we have seen some changes in Australia. After some years of struggle in New South Wales and some active negotiation with the then government, action was brought by the Greens a few years ago—and, indeed, at that time it was a coalition amendment that went to the New South Wales parliament. There's now a provision under the New South Wales Fines Act so that somebody on a government support payment has a right to apply to have their fine halved on proof that they're on a Commonwealth support payment. That at least produces a measure of equitable impact under the fines system in New South Wales. That's been in operation now for a number of years and has been a really important measure to produce increased fairness in how fines operate in New South Wales.

We have a federal Labor government, and one of the ideological pillars of Labor is meant to be some kind of approach to equity. But, instead of even following what we managed to get in New South Wales, we have a bill here now from federal Labor that just wants to ramp up fines. We know who that's going to hurt most: not a billionaire or a millionaire but somebody who has the least. Again, I ask for an explanation from the minister. Why is it you're choosing to do this? Why have you increased fines by—together with the increases under the coalition between 2017 and 2024—54 per cent, more than double inflation? Do you recognise what an impact that has, particularly on people who are struggling to get by financially?

The bill also makes changes to information-sharing provisions in the Telecommunications (Intercept and Access) Act 1979 to make it simpler for state based oversight bodies to receive intercept information and intercept warrant information from agencies within their jurisdictions. This is an outstanding issue. This has been a long-running concern, particularly for state oversight agencies such as the New South Wales ICAC, police oversight bodies and corruption bodies in states and territories. It's a useful change, but I think it will require close monitoring both by the Commonwealth Ombudsman and by this chamber.

There's an outstanding issue, in that stored communications or telecommunications data accessed by state based integrity agencies should be disclosable to the oversight bodies for those agencies. Fixing this was, indeed, also a recommendation of the PJCIS report on this bill. That recommendation read:

The Committee recommends that, as part of the proposed electronic surveillance reforms or other future reforms to the Telecommunications (Interception and Access) Act 1979, the Government consider whether state-based oversight bodies should be given access to stored communications and telecommunications data held by the agencies within their jurisdiction, in addition to the access to lawfully intercepted information and interception warrant information conferred by the Bill.

I further note that this bill was amended in the Federation Chamber to stop the secrecy provisions from sunsetting, and, to this, I note that the sun never sets on any additional power that's granted to a Commonwealth security agency.

I do look forward to the government responding to these issues of substance on the bill. I particularly look forward to an explanation from the government as to why it thinks it's legitimate to so aggressively increase fines, knowing that those who will be most harmed are those with the least.

I look forward to the chamber supporting our second reading amendment that would finally say that the criminal justice system should actually be graduated for fairness and that, if you're a millionaire, a fine should actually have an impact on you and a similar impact on you to if you're surviving on JobSeeker. The only way you can do that is if you graduate fines based on income. We surely should be moving towards that.