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

I rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. These bills are very important and are intended to implement a national response to organised crime. All members of the coalition are acutely aware of the great cost, including the great human cost, that organised crime imposes on society. Our record is a proud one of developing and implementing innovative methods to defeat this national scourge. However, we are also conscious that the measures used to combat organised crime have the potential to sweep up the innocent in their net. Great powers given to our law enforcement authorities, despite our best intentions, are also capable of producing injustice and oppression if the use of those powers is not properly circumscribed and subject to effective oversight. When introducing significant new anticrime measures we as legislators must always weigh up the potential for, and consequences of, the abuse of those measures. The key proposals of the bills are criminal asset confiscation and unexplained wealth.

Schedule 1 amends the Proceeds of Crime Act by introducing unexplained wealth orders for the confiscation processes. This targets wealth that a person cannot demonstrate to have been lawfully acquired. If a court is satisfied that an authorised officer has reasonable grounds to suspect that a person’s total wealth exceeds the value that has lawfully been acquired, it can compel the person to attend court to prove on the balance of probabilities that the wealth was not derived from offences with a connection to Commonwealth power. If the person fails to meet this onus, the court may order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth. Restraining orders are available in aid of this order and in advance of such an order—such orders being, by way of analogy, with injunctions available in civil proceedings.

At the time of applying for a restraining order, the DPP need not prove that the property is subject to the person’s effective control but must state the grounds for such a suspicion. If these requirements are met, the restraining order must be made even if there is no risk that the property will be disposed of or otherwise dealt with. It may also apply in relation to property that is not yet in the possession of the suspect. Property may be excluded from the scope of the order if the court is satisfied that it belongs to another person and is not under the suspect’s effective control.

A restraining order will cease to apply if the DPP has not applied for an unexplained wealth order within 28 days or if an unexplained wealth order is refused and avenues of appeal are closed or otherwise disposed of. The bill also provides for time limited asset-freezing orders in aid of the Proceeds of Crime Act—as, again by way of analogy, with civil injunctions. These apply for three days and are directed to accounts held by financial institutions.

Schedule 2 amends the regime applicable to non-conviction based orders. Currently there is a limitation period that precludes confiscation if offences are not detected until more than six years after the offence was committed. The review recommended extension of the limitation period to 12 years, but the bill proposes removing this time limit altogether. Amendments are also proposed to ease the recovery of legal costs by legal aid commissions from restrained assets.

Secondly, the bills deal with controlled operations, assumed identities and witness identity protection. The bills propose amendments to the Crimes Act 1914 in response to the High Court’s decision in Gedeon v the Commissioner of the New South Wales Crime Commission in 2008, which placed in doubt the protection of participants in a controlled operation. A ‘controlled operation’ is one in which undercover law enforcement officers are authorised to do certain things that would otherwise be illegal in order to obtain evidence of a serious offence. The amendments to the assumed identities regime will introduce mutual recognition provisions to permit undercover officers lawfully to obtain identity documents in other jurisdictions. The witness identity protection scheme applicable to undercover officers will enable certificates issued in one jurisdiction to be recognised in other jurisdictions.

Thirdly, the bills cover telecommunications interception and criminal organisations. The bills propose to amend the Telecommunications (Interception and Access) Act 1979 to include in the definition of ‘serious offence’ associating with, contributing to, aiding and conspiring with a criminal organisation or a member of that organisation for the purpose of supporting the commission of prescribed offences. The prescribed offences are the recently introduced state and territory offences commonly known as the bikie laws. Telecommunications interception will be made available to state and territory law enforcement agencies for investigation of these offences.

The provisions of the bills relating to undercover operations and joint commission of offences make relatively technical amendments. However, the provisions relating to unexplained wealth do raise significant civil liberties concerns and have generated substantial criticism. The unexplained wealth provisions are invasive. These bills have been placed under close scrutiny to ensure that adequate safeguards exist and that the arguments in favour of the proposals are properly articulated and justified. I can tell the Senate that the bills were considered by the shadow cabinet no fewer than three times and by the coalition party room on no fewer than three occasions, so concerned were we to ensure that the government got the balance right between effective law enforcement and empowering law enforcement agencies with sufficient apparatus to deal with serious and organised crime in the more sophisticated culture of the early 21st century on the one hand and protecting the citizen from invasive and arbitrary exercises of policing power on the other hand.

The Crimes Legislation Amendment (Serious and Organised Crime) Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which delivered its report on 17 September. The evidence to the committee included detailed submissions from the Law Council of Australia and all of the principal Commonwealth law enforcement and prosecution agencies. Significant concerns were expressed in particular about the unexplained wealth provisions by the Law Council, Civil Liberties Australia and members of the committee across party lines. Particular concerns were that an unexplained wealth order was mandatory rather than discretionary, which is in the initial draft of the bill; that the only link to any wrongdoing was an authorised officer’s suspicion that a person’s wealth was linked to a Commonwealth offence, a state offence with a federal aspect or a foreign offence; and that the safeguards against abuse of these powers were very limited.

The committee recommended extensive amendments to the bill. The most important of the committee’s recommendations were as follows. Firstly, a court should have a discretion to refuse to make an unexplained wealth order. In the initial iteration of the bill there was no discretion and, upon the court being satisfied as to certain stated criteria, the making of such an audit was mandatory. Secondly, the grounds upon which an officer suspects that a person’s wealth exceeds his or her lawfully acquired wealth must be specified in any supporting affidavit—a safeguard that was absent from the initial iteration of the bill. Thirdly, in relation to the joint commission of offences, there should be safeguards where an accused person terminated his or her participation and took reasonable steps to prevent the commission of an offence. The government has circulated amendments which purport to give effect to some of these recommendations. However, the coalition does not believe that those amendments are adequate. The sole ground for the exercise of any discretion by a judge to make an unexplained wealth order, as the bill stands at present, is that it is not in the public interest to do so.

Despite the coalition’s heartfelt support for measures designed to combat organised crime and the fact that these measures will undoubtedly assist our law enforcement agencies in that vital task, there is still a real risk that these laws could be open to abuse if not amended. In the course of consultations on the bill, we have had many examples of the great benefit the measures would have in the investigation of the kingpins of organised crime. That is not in dispute. We could hear many more examples and we would agree in each case that unexplained wealth orders would be extremely useful. What we need to hear is what would happen if the innocent were caught up in the process by an overzealous prosecutor. These things can happen. Those of us who have practised law, as I did for many years, have seen them happen. We live in a society where the right to privacy is respected and where ordinary people have the right to live their lives without explaining their lifestyle to the authorities or anyone else, or having their assets frozen or confiscated on nothing more than an officer’s suspicion. This is a society which operates on the rule of law. We on the coalition side will ensure that the rule of law is respected. Organised crime must and will be brought to heel, but it must not be done at the cost of ruining innocent lives.

We are confident that the appropriate balance can be struck. The government amendments are a welcome start. The coalition has further amendments. I am pleased to say that I had a very useful meeting with the Attorney-General, Mr McClelland, and I want to take this opportunity to thank him for his courtesy and the spirit of cooperation with which he dealt with the coalition. The coalition’s amendments, which I foreshadow, are directed to ensuring that the court has a discretion in relation to any unexplained wealth application. This is the single most important safeguard against abuse. In November, in the case of International Finance Trust Company Ltd & Anor v New South Wales Crime Commission & Ors, the High Court struck down the provisions of the New South Wales Criminal Assets Recovery Act, in part because the act provided no discretion in relation to orders similar to those we are considering here. The High Court’s decision in the IFT case illustrates, as well as one could imagine, the importance of ensuring that there are safeguards in this legislation, not merely to protect the rights of the innocent but also to ensure that the legislation is efficacious in its objective of combating serious organised crime. Further amendments will provide for cost orders and undertakings as to damages as a deterrent against bringing ill-founded applications or applications for insufficient reason.

The regime introduced by this bill will be expressly subject to the supervision of the Parliamentary Joint Committee on the Australian Crime Commission. I understand that the government will not oppose these amendments, and I thank them for taking that course. In addition, I will propose amendments that would permit a court to quarantine assets from the scope of an unexplained wealth order or a restraining order so that the respondents can meet reasonable legal costs of resisting an application. The regime proposed by the government would permit only legal aid representation if an order left insufficient funds to pay for the lawyer of a respondent’s choice. I appreciate that the amendments which I am foreshadowing differ from that regime, which is also applicable to general proceeds of crime matters. However, in the coalition’s view, unexplained wealth applications are very materially different in that no specific crime needs to be alleged. Let me emphasise that point: for a person to be subject to an order under this legislation, no specific crime needs to be alleged. That is why the coalition, while of course supporting the sentiment and objective of the bill, approaches the issue of safeguards with particular caution. In these circumstances, where a person is compelled to explain their financial affairs on pain of forfeiture, justice demands that appropriate legal assistance be reasonably available. Subject to those matters, on which I will speak further at the committee stage, the coalition supports the bill.

I will say a word now about the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. This bill contains a large number of amendments covering proceeds of crime, search warrants, witness protection, criminal association, money laundering, Australian Crime Commission powers, bribery and drug trafficking. Time will not permit me to discuss these in any detail at this stage of the debate. A significant number of the proposed amendments have their genesis in reports commissioned by the previous government and have the coalition’s support.

However, certain provisions do raise misgivings. For example, as the bill is drafted, the fact that an impugned relationship is that of lawyer and client is only a defence to a criminal association charge in limited circumstances. That is clearly oppressive. There is also provision for the operation of electronic equipment to obtain access to data on premises entered under a warrant, whether or not the officers suspect that the data contains evidential material. Perhaps most importantly, the offence of criminal association in support of serious organised criminal activity may include facilitating an offence by another person without any intention of doing so, so that the requirement of subjective guilt is absent from the offence.

This bill was considered by the Senate Legal and Constitutional Affairs Legislation Committee in its report of 16 November last year. The committee identified certain matters that required amendment, including those to which I have referred. I am pleased to observe that the government has adopted a number of the committee’s recommendations. The coalition will therefore support the government amendments in the committee stage. However, as the Liberal senators on the Legal and Constitutional Affairs Legislation Committee pointed out, the amendments proposed by these bills ‘ought to be viewed as being at the outer limits of the powers the parliament will countenance for law enforcement agencies’.

The coalition is acutely conscious of the very real danger posed to our society by organised crime. The relevant agencies are convinced that these powers are necessary to tackle that threat. That may well be the case. Coalition senators will be watching carefully, including through close scrutiny at estimates, to ascertain whether that concern is verified in practice so as to justify the unprecedented expansions of police power which this legislation prescribes.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to add some comments to those of Senator Brandis on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I listened to his speech with interest and find that the Greens share many of the concerns that the shadow Attorney-General has just expressed. The Australian Crime Commission estimates that organised crime costs Australia in excess of $10 billion every year, placing an enormous burden on our economy and community. Those raw numbers expressed as financial resources go no way towards hinting at the extraordinary human and social cost of organised crime in this country. We share the concern of all parties in this parliament that organised crime should be pursued to the best of our resources and expertise.

We must therefore continually investigate and debate new approaches to combating organised crime. We know that these organisations and networks are continually evolving in line with developments in technology and communications. Our law enforcement agencies must obviously be equipped to respond to these developments and, as such, law reform is warranted to take an adaptive approach to the evolution of criminal networks.

Of course, the severity of organised crime does not warrant undue encroachment on judicial discretion or on fundamental legal principles such as the presumption of innocence, the right to silence and the onus of proof. Nor does the severity of organised crime justify inadequate consultation and rushed reform. Instead, the seriousness of organised crime should provoke model reform practice like that which led to the initial drafting of the Criminal Code.

As everybody in here would agree, we need to strike the right balance. It is just a matter of to what degree we agree on whether that balance has been struck. The fundamental importance of our criminal law principles and the threat of organised crime require adequate debate and consideration by the parliament and indeed in the broader community.

The scope of the reform proposed in this legislation is too broad to be adequately dealt with in a single bill. That is why there is not one but two very complex, detailed and extremely long omnibus bills. They make amendments collectively to the Crimes Act 1914, the Criminal Code Act 1995, the Customs Act 1901, the Family Law Act 1975, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979. There is nothing really that collectively binds this legislation together. It is a loose umbrella grouping of a range of unrelated provisions within the undefined rhetoric of ‘organised crime’.

The proposed amendments alter the core of Commonwealth criminal law and criminal responsibility. In my view, quite inadequate justification has been given for why some of these reforms are needed and why the current law is inadequate. Obviously, with a range of provisions like this coming before the Senate, some of these amendments are technical, some of them are entirely appropriate and innocuous and some of them make good sense. Those are not the ones that I will be concentrating on this afternoon.

The importance of the Senate committee process was demonstrated with the referral of the bill to the Legal and Constitutional Affairs Legislation Committee. We received 13 submissions from diverse groups and we held a public hearing in Melbourne. In our final report, the committee made 13 recommendations. It is disappointing to see the continuation of what is emerging as fairly common practice, in that the government has cherry-picked recommendations of the committee. It has taken up some of them—and we see some of them as amendments today—and it has ignored some of the others.

Since the committee process, the government has introduced 64 amendments to the bill. Some of these are very substantial amendments that require attention and review. A handful of the amendments that the government has brought forward do relate to the work of the committee. Many of them come completely out of left field. The committee has not had time to review them, and now the Senate will be considering and debating these extremely complex provisions that came out of the blue without being subject to the dignity of review by the Legal and Constitutional Affairs Legislation Committee. This has left several key recommendations of the committee completely unaddressed.

I will speak briefly to some of our particular concerns. We welcome supplementary amendments (27) and (28), which require the authorising agency of a controlled operation to provide additional information in its reports to the Ombudsman and to the responsible minister. That is a sensible transparency measure which we support. However, these amendments ignore recommendation 6 in the committee report. This would have required the principal law enforcement officer with respect to a controlled operation to make a report to the chief officer of the law enforcement agency within two months of the completion of the operation. This has not been taken up. This additional reporting requirement would have been an important safeguard and would have better reflected the fact that police corruption is a real issue—it does exist in this country—particularly where controlled operations involve law enforcement officers dealing with illicit drugs or large amounts of money.

The government has also ignored recommendation 10 of the committee’s report, which responds to the joint commission of an offence. Senator Brandis raised this, and it is one of the most important and gravest concerns that we have expressed about this legislation. The committee recommended that an individual not be liable for the joint commission of an offence provided that they have terminated their involvement in the agreement and taken reasonable steps to prevent the commission of the offence. A key part of our concern is that schedule 4, part 1, of the bill, the ‘Joint commission’ chapter, alters chapter 2 of the Commonwealth Criminal Code. This bill therefore alters criminal responsibility at the Commonwealth level, which has flow-on effects for every offence in the Criminal Code, not simply matters limited to organised crime.

These provisions have extremely far-reaching consequences for how the code will be used and interpreted from this day forward across the entire range of offences contained in the code. This is a fundamental alteration of the Criminal Code. It requires further consultation. The government is well aware of the range of highly reputable expert organisations that submitted their concerns on the way through the committee process and outside that process. The proposed amendments go beyond the common-law interpretation of ‘joint criminal enterprise’ and, as such, the significance of these amendments should not be dismissed. I suspect, as we see this debate go forward, that the concerns of those organisations will be dismissed by the government. They are concerns that the government ignores at its peril.

With regard to the threshold for obtaining a preliminary unexplained wealth order, the bill proposes that the court must simply be satisfied that the authorised officer has reasonable grounds to suspect the person has unexplained wealth. It has been suggested that this threshold be raised to ‘reasonable grounds to believe’. This is a strong recommendation, given that the person subject to the order has the burden of proving that his or her wealth was not derived from criminal activity. The supplementary explanatory memorandum states the amendments respond not only to the committee report but to ‘issues identified as a result of ongoing discussions between the Attorney-General’s Department and portfolio agencies’. The parliament is not privy to those discussions that go on behind closed doors and neither is the Legal and Constitutional Affairs Committee nor the community. So many of those amendments have not been through any process of review, and we are now confronting them for the first time.

We have seen a pattern of the Rudd government—and it probably is a holdover from past governments—where on the really difficult issues, whether they be organised crime networks, international terrorism or issues that we will confront when we debate the Crimes Amendment (Working With Children—Criminal History) Bill, there has been a disturbing trend towards the almost casual erosion of fundamental principles of the rule of law. It is the work of this parliament and the work of law reform agencies to confront those difficult issues without necessarily eroding the principles of the rule of law in Australia. I foreshadow support for the opposition amendments. The Greens do not believe that they go far enough, but they have been thought through and I do believe they go some way to addressing some of the concerns we have raised here. As the debate progresses, I just indicate that we will be supporting those opposition amendments. Lastly, I would like to thank the Attorney-General and his staff for briefing us in late 2009. That was greatly appreciated and I look forward to the conclusion of the debate.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Organised crime is becoming more and more difficult to detect as crime bosses learn and find new ways to outsmart the law. Over 200 years ago Edmund Burke, the great English philosopher and statesman, said, ‘The only thing necessary for the triumph of evil over good is for good men to do nothing.’ The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 do something, and I indicate my support for them. During my time in the South Australian parliament I was regularly approached by police officers who were frustrated because South Australia’s weak asset confiscation laws were allowing too many criminals to get away with profiting from their crimes.

As far back as June 2007 I called for the South Australian government to get on its bike and to move for asset confiscation laws that were closer to the Western Australian and Northern Territory legislation, which would make it easier for unexplained wealth declarations to be made. Effectively, this is what the government is doing. I note your role, Mr Acting Deputy President Hutchins, in the fine work that your committee, the Joint Committee on the Australian Crime Commission, did in analysing and robustly looking at these proposals. I note at the time, back in June 2007, I was supported in this by the now opposition leader in South Australia, Isabel Redmond, who joined me in a media conference calling for reforms. It is good to see that the South Australian government has recently moved to reform the law on this.

I think it is important in dealing with organised crime that these laws are not only enacted but enforced. I do note with interest that in a report in the Australian last Monday the AFP will be reorganising a push to fight organised crime. One of the concerns that has been expressed is that AFP resources have been diverted as a result of the emphasis on the fight against terrorism, which is entirely appropriate, but it is clear there have not been the resources to fight organised crime. Unexplained wealth declarations are an important tool and an important weapon to attack organised crime in this country.

These bills also grant the police power to seek unexplained wealth orders based on reasonable suspicion. Some would argue that, when it comes to dealing with organised crime, it is as big a problem and as big a threat to the community as terrorism. In fact, it is more of a real and present threat when you consider the pernicious effect of some of these organised crime gangs, the outlaw motorcycle gangs and those that deal in illicit drugs, particularly crystal methamphetamine and heroine, and the way they can hide their wealth and get away with what they do.

I am pleased to see that the government has addressed the concerns from the Senate Legal and Constitutional Affairs Committee in this area by stating that an officer must include his or her reasonable suspicion in an affidavit. Reasonable suspicion allows police to obtain an unexplained wealth order against someone who may not be obviously involved in criminal activity but who is reasonably expected to be. This will cover, for example, major crime figures who leave no trace of their criminal involvement but who, through their associations or actions, can reasonably be linked to illegal activity.

The committee’s recommendations also included that the courts should have the discretion to revoke or refuse a preliminary unexplained wealth order if it is in the public interest to do so. I am pleased to see that the government has also included this recommendation because, while it is necessary for police officers to have the option of using the orders, it is equally necessary to ensure that they are not abused.

I note the comments of Senator Ludlam expressing his reservations and the reservations of the Greens about corrupt police officers. I think what Senator Ludlam says is important in the context of ensuring that, given the enormous amounts of money involved and given the potential for corruption, we have effective controls to monitor corruption and it is weeded out in our law enforcement agencies. I do not think that in itself is a reason not to ensure that we go down this path in respect of unexplained wealth orders. Senator Ludlam is right in the sense that, if you have legislation such as this, it is important that we also have strong measures in place to deal with the issue of the potential for police corruption and the actuality of it occurring. I know that in my home state many years ago the former head of the South Australian drug squad spent a considerable period of time in jail—some would say not enough—for trafficking in heroin and behaving corruptly.

I believe the freezing orders included in these bills are another important tool for investigators. The shortened application process is important when it is likely that a suspect will move or transfer the funds or other proceeds of their crimes. These bills also allow property that is either used or intended to be used in a crime to be confiscated and used as evidence. It is important to note that property from indictable offences can only be confiscated after a person is convicted.

I support these changes but I believe that we may need to go further, depending on how effective they are. I appreciate the contribution of the shadow Attorney-General in relation to this. I would like to put these questions on notice to the government. Perhaps they can be dealt with in the committee stage or be put on notice. What is the government proposing to do in the context of monitoring the effectiveness of this legislation? To what extent does this legislation differ from legislation overseas in relation to unexplained wealth orders and in its effectiveness in dealing with organised crime? When does the government propose to report back to the parliament? Does it have any proposed reporting mechanisms to look at the efficacy of this legislation?

Essentially, the question is: are we doing everything possible to deal with unexplained wealth in the most effective way possible, taking into account the concerns expressed by the committee, and are we doing it in a way that will actually make significant inroads into unexplained wealth declarations? Unless this is an effective law, we will continue to see organised crime syndicates. The outlaw motorcycle gangs will continue to prosper and continue to have their corrosive and destructive influence on society.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Serious and organised crime costs Australia more than $10 billion a year. Serious and organised crime also undermines the safety and security of all Australians. Everyone here would remember clearly the horrific incident at Sydney airport last year, when two motorcycle gangs had a violent brawl and a man was bashed to death. This violence took place in front of innocent bystanders, with many women and children caught up only metres from the violence and only a few steps away from where the bikie member was killed. If ever the government needed a wake-up call that it was losing its grip on the fight against organised crime then that violent brawl in Sydney airport was it. Family First believes that outlaw motorcycle gangs are serious criminal organisations; to believe otherwise is a dangerous misconception. Outlaw motorcycle gangs are a major player in serious and organised crime in Australia, particularly in the illegal drug trade, but the Rudd government has decided to go soft on outlaw motorcycle gangs as it refuses to act on anti-association laws and/or laws aimed specifically at dismantling organised crime groups. Family First strongly believes that anti-association laws and/or laws specifically aimed at dismantling organised crime groups are a crucial element of legislative arrangements to control organised crime groups involved in serious and organised crime.

Internationally, laws targeting criminal associations have been used with great effect. In Italy anti-association laws in conjunction with unexplained wealth provisions have been pivotal in prosecuting major figures in the Mafia. In the United States the Racketeer Influenced and Corrupt Organizations Act, the RICO Act, has been used effectively to prosecute major figures in organised crime, including the heads of the Gambino and Genovese crime families and their known associates. In Canada the Royal Canadian Mounted Police used very effectively laws targeting specific offences for participating with a criminal organisation in order to control outlaw motorcycle gangs, in particular the Hells Angels. In Hong Kong anti-association laws were used with great effect against the triads.

Whether the Prime Minister likes it or not, organised crime is a national issue that does not recognise state boundaries, but instead of dealing with this very real problem the Rudd government has left it up to the states. The Serious and Organised Crime (Control) Act 2008 in South Australia includes anti-association provisions, as does the Crime (Criminal Organisations Control) Act 2009 in New South Wales, and the Queensland government has signalled its intention to implement similar anti-association laws. The Rudd government has missed a good opportunity to tackle organised crime groups. Family First strongly supports national anti-association laws that would target known criminal associates involved in organised crime. For too long, the police have been fighting with one hand tied behind their backs because of outdated laws that do not give them enough power to take these violent criminals off our streets and put them into the jails where they belong. Australians want to feel safe and secure when they leave their homes and go outside. They do not want to feel like they could be walking to the next crime scene, as we saw at Sydney airport.

Australians must not be terrorised by outlaw gangs that refuse to operate within the boundaries of our society. The two bills before us today, the Crimes Legislation Amendment (Serious and Organised Crime) Bill and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2), are an important step in the right direction and finally deliver national unexplained wealth laws in Australia, which Family First strongly supports. Family First believes that both anti-association laws and unexplained wealth provisions are necessary in targeting serious and organised crime.

Organised crime does not just include outlaw bikie gangs; it includes other sophisticated groups that engage in criminal activity and cost this country billions of dollars each year. As I said, the Australian Crime Commission estimates organised crime costs Australia more than $10 billion a year. That is $10 billion dollars this country is losing because of criminals who believe that, unlike all other Australians, they do not have to play by the rules. That is $10 billion dollars that could be spent on improving our health system, on securing our water supplies or on investing in the education system. We are not talking about some petty thieves here. These are well organised criminals who engage in all sorts of activities: drug trafficking, money laundering, identity theft and cybercrime. These are people who have no respect for the law and who inflict substantial harm on our community.

As a kid growing up in Reservoir I saw a lot of things, but the one thing that riled me the most was seeing people not playing by the rules and taking advantage of those weaker than themselves. That is why I made a point of becoming a full member of the Parliamentary Joint Committee on the Australian Crime Commission and the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity. I see how serious organised crime is like a social cancer that undermines the safety and security of all Australians.

The bills that we are debating contain a number of important measures, particularly those regarding unexplained wealth. The laws about unexplained wealth should be pretty simple and easy to understand. If you are involved in or connected to crime and you have unexplained wealth then you cannot keep it. I think that is a very good message. Of course, some people will be concerned about how unexplained wealth laws are against people’s civil liberties, but I do not see that as a problem. Unexplained wealth laws are straightforward and simple. If you have not done anything wrong then you have got nothing to worry about. There are serious criminals out there making millions of dollars from illegal activities, and some of them flash it around with fancy cars and fancy houses. It is outrageous. There are idiots out there, and some people are concerned about their civil liberties—what a joke! Who are these people trying to protect? Sometimes I think people forget which side they are supposed to be on.

Family First supports measures to crack down on unexplained wealth because this is another powerful weapon that the police can use to stop organised crime happening in Australia. Family First believes that both anti-association laws and unexplained wealth provisions are necessary and vital in targeting serious and organised crime in Australia and also in making sure that Australians are safe and secure. I believe that most Australians would be pretty peeved with the Rudd government if they knew that the government did not have the guts to introduce national anti-association laws when it had the chance to do so at this time.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I thank all senators for their contributions to the debate on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I note also that the opposition, through Senator Brandis, has indicated the coalition’s support for the bills, and I thank the opposition for taking that view.

There were some issues raised in the debate that we may deal with in more detail in committee, but I did want to briefly respond to some of them now. In relation to some comments made by Senator Brandis in which he raised the issue of appropriate safeguards for unexplained wealth orders, the government believes that it has included checks and balances that ensure that these measures operate safely. There is a gatekeeping requirement to trigger the application of the provisions, and a preliminary unexplained wealth order cannot be made unless law enforcement agencies satisfy the court that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of lawful earnings. I am also advised that there are potentially some amendments from the opposition on this matter, and I understand there have been satisfactory negotiations on that point.

Senator Ludlam raised concerns about the consultation on and time for consideration of the bills. I would make the point that these bills were introduced into the parliament last year, in June and September. The parliament has had some months to consider each of them and the Senate committee has also inquired into and reported on the bills. Public hearings were held in the context of these hearings, and the government has given careful consideration to all of the recommendations of the committee. The senator also raised the concern that the joint commission provisions go further than the common law. The government’s view is that the provisions are consistent with the common law and ensure that the Commonwealth Criminal Code reflects that common law.

The senator also questioned why the government will not be implementing one of the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee, namely recommendation 6, in which the committee recommended that principal law enforcement officers be required to report to the chief officer on each operation within two months of its completion. I am advised that these reports would largely duplicate information, recording and reporting requirements set out under other provisions. For example, details about the nature and quantity of illicit goods and the route through which they are passed are already required of both chief officers’ reports and the general register. To address the Senate committee’s concerns, the amendments will ensure law enforcement agencies are required to include information about the controlled conduct engaged in, the outcomes of each operation and both chief officers’ reports and the general register. The government has also made amendments in the other place to require additional reporting to be undertaken if an operation involves narcotic goods.

This government takes very seriously its responsibility for ensuring a safe and more secure Australia. These bills are a significant step toward that goal. As senators know, organised crime inflicts substantial harm on our community as well as on business and government. Organised crime networks are extensive, entrepreneurial and adaptive. They are involved in a range of criminal activities, from illicit drug trafficking and money laundering to identity theft and cybercrime. The increasingly aggressive nature of organised crime requires a more aggressive response. It is important that there are strong laws in place to combat this national security threat.

Passage of these bills will represent a significant advance in the tools available to fight serious and organised crime. The bills implement resolutions agreed by the Standing Committee of Attorneys-General in April and August of last year for a comprehensive national response to organised crime. At that meeting, Commonwealth, state and territory governments committed to decisive action to address the threat of organised crime and to ensure that there were no safe havens in Australia for organised criminal groups. These bills also deliver on the Prime Minister’s assurance in his inaugural National Security Statement, delivered at the end of 2008, that the government would act to address the threat posed by organised criminal activity by further strengthening the laws necessary to combat organised crime.

There is a range of government amendments which will be moved in the committee debate and I propose to address them at that stage. They are amendments that are designed to clarify and ensure that the provisions in the bill and existing legislation operate as intended, as well as more substantive amendments. The measures in both the bills as amended represent another significant step as part of a coordinated national effort to more effectively prevent, investigate and prosecute organised crime activities in this country and to improve laws that target the proceeds of organised crime groups. Both sets of reforms are an important part of the government’s commitment to keeping Australia safe and secure, and I commend the bills to the Senate.

Question agreed to.

Bills read a second time.