Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Chair, I seek your guidance. I seek to move some amendments, but I have some questions to ask before that occurs.

The TEMPORARY CHAIRMAN: Proceed with your questions and then we will determine the amendments.

The Greens are seeking to move two amendments together. It is important to understand that these amendments are merely to oppose the schedules in the bill which would remove the judicial discretion as to whether a person who is subject to unexplained wealth proceedings can use their assets to defend themselves, to seek legal advice and to defend the application to seize those assets from them. We have heard some discussion from the minister about the problems that are posed in some cases where a person who is subject to unexplained wealth proceedings may wish to dissipate their assets by having protracted legal proceedings. These Greens amendments would not prevent a court apprised of all the information and evidence that is relevant to making a decision not to allow a person subject to the proceedings to use their assets; they merely seek to oppose the complete removal of any judicial discretion as to that. So it does not mean that the court could not order that a restrained person could not use their restrained assets for a legal defence; it merely means that it will remain a possibility for a judicial officer before the court to decide whether or not a person can use their assets.

The issue at the nub of the government's defence of these far-reaching amendments is clear from the statement that was made by the minister earlier today. He said to the effect that this legislation is designed to turn the tables on criminals to force them to prove that their wealth has been lawfully acquired. Therein lies the assumption. The assumption is that these proceedings will only ever be brought against criminals who have unlawfully acquired wealth and it is therefore in everyone's interest for the government to be able to bring that proceeding. The difficulty starts when you actually allow yourself to consider the possibility that governments do not always get these matters right, that the person against whom the proceedings are being brought may not be a criminal and that, in fact, the wealth was legitimately acquired. And then you can see the justification for potentially allowing the person to use their assets—which, in the case I am posing, have been lawfully acquired—to defend themselves from this government action. Minister, what is the evidence—there is no evidence in the explanatory memorandum—that the existence of this judicial discretion has been misused or has jeopardised the outcome of unexplained wealth proceedings in the past?

Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

The government does not support this amendment. The Parliamentary Joint Committee on Law Enforcement has recommended that the unexplained wealth laws be changed to prevent people from using restrained property to meet their legal expenses. That is recommendation 10. The Parliamentary Joint Committee on Law Enforcement considered submissions from a range of community, law enforcement and other government bodies in making this recommendation. Unexplained wealth proceedings are the only type of proceeds of crime proceedings in which people are allowed to use restrained assets in this way. The Proceeds of Crime Act generally prohibits restrained assets being used in this way to prevent the practice of dissipating wealth on legal expenses to frustrate potential proceeds of crime orders. To ensure that people are not deprived of legal representation, the Proceeds of Crime Act provides a scheme to reimburse legal aid commissions for costs incurred in representing people who are subject to a restraining order. Under the bill, people who are subject to unexplained wealth proceedings may seek legal representation through legal aid if their unrestrained assets are not sufficient to meet legal costs to ensure that they are appropriately represented and are not disadvantaged. People are still able to use any of their unrestrained assets to pay for legal counsel of their choosing. Courts also have a wide discretion to refuse or revoke orders such as where it is in the interest of justice to do so.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am glad that the minister has referred to the legal aid implications of this—and I will come back to those questions. But that did not actually answer the question I had, which is: what evidence is there that the existence of the judicial discretion, which is what we are discussing here, has actually caused a jeopardisation of the outcome of unexplained wealth proceedings in the past? What I would like to do is be really clear and ask the government to get their story straight on the rationale behind this particular aspect of the legislation. We are told that one of the bases of unexplained wealth legislation is to take the profit gain out of organised crime. And certainly the Greens are supportive of the view that that is an effective thing to be doing. I was involved in the Parliamentary Joint Committee on Law Enforcement when it was first considering the first manifestation of this legislation—or the issue anyway—and one of the issues was that it is indeed quite effective to have criminals who have been used to having a lot of money to flash around, to drive flash cars and so on, to have that money not available to them. So I understand that rationale. But then we have the argument that we cannot allow judicial discretion in some cases to allow persons who are subject to these proceedings to use their restrained assets to get legal defence because they may dissipate the assets, which then would not be available to the government. But in that case, if the story is that it is in fact about separating criminals from their money, why is it such a problem if they are effectively removed from the benefit of the assets because they have had to use them on legal defence proceedings? Is that the issue, or is it in fact that the government is concerned that, if the money is being used on legal defence, it will not be available as revenue for the government? I am not clear on that. It is one or the other. But you cannot argue that the use of restrained assets for legal defence proceedings does not remove the money availability from the persons who are allegedly the criminals. In the end, if that is where the money is gone, they are not going to have that money available to live the high life, which is what we are wanting to prevent.

Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

The ability of a person to dispose of restrained property to meet their legal costs weakens the effectiveness of the unexplained wealth provisions by allowing the wealth suspected to have been unlawfully acquired to be used to contest proceedings. This may lead to fewer assets being available for confiscation if an unexplained wealth order is successful, and is likely to cause more protracted litigation. This amendment—the government's amendment, not the Greens amendment—will harmonise provisions relating to the payment of legal expenses for unexplained wealth cases with those for other proceedings under the Proceeds of Crime Act.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

As I said, it would be interesting to have the story straight then. The issue is really to make sure that those restrained assets are available as revenue for the government so they are not dissipated? Is that the case, or is it to actually prevent criminals from benefiting from their restrained assets to have at their disposal and to be able to use to live the high life? I am not clear on what the rationale for the legislation is.

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

Can I indicate that I did not have an opportunity to make a second reading contribution, but I will just say in the briefest possible terms that I am broadly supportive of the legislation. I believe that this is the way to strike at the heart of organised crime. We have a very real issue with drug dealers in this country. We have a scourge, particularly in respect of crystal methamphetamine. There are reports that there could be a glut of heroin on the market, given what is happening in countries overseas.

However, in the context of being supportive of this legislation, I do want to ask the minister, in broad terms, how much money has been obtained through unexplained wealth legislation in the past? What does the government say will be the increase in funds being obtained as a result of the measures in this bill? Also, given the way that organised crime figures are always trying to find a way to circumvent legislation such as this, has the government anticipated that? It seems that organised criminals are always trying to find a way to get ahead of that.

In other words, does the legislation in its current form carry with it enough scope to look at associates of organised crime figures who are subject to these orders?

I do have some other questions, but perhaps I will now put those to the minister. Given that the Attorney has just entered the chamber, perhaps I could repeat them for his benefit. I can indicate my broad support for this legislation; this is the way to tackle organised crime. My questions are—and if some of these have to be taken on notice, to an extent, I would accept that, as long as I have an undertaking to get those details: through our current legislative regime, how much unexplained wealth has been seized over the past few years? What does the government say this legislation will do in terms of an increased seizure of assets in respect of that? Given this approach, which, in broad principle, I am very supportive of in this bill, has the government anticipated that organised criminal groups and individuals will find ways to get around this by perhaps siphoning money to associates so it is harder to trace? Will there be enough resources to anticipate these new changes by which criminal gangs will try to get ahead? I have some other questions, but I thought I would put those to the minister.

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

I suggested that if I take this moment to indicate Labor's position, then that might give the government a moment to consider Senator Xenophon's questions. The opposition will not support the Australian Greens amendments. The bill harmonises legal expense and legal aid provisions for the unexplained wealth cases with those of the other Proceeds of Crime Act 2002 proceedings to prevent restrained assets being used to meet legal expenses. The Parliamentary Joint Committee on Law Enforcement into Commonwealth unexplained wealth legislation and arrangements recommended in its report, in recommendation 10, that this occur. In making this recommendation the committee noted that the Proceeds of Crime Act was amended in 2002 to prevent defendants from accessing restrained assets to fund their legal representation. This amendment was prompted by a recommendation of the Australian Law Reform Commission that allowed defendants to access restrained assets to pay their legal costs that was contrary to a key principle of the Proceeds of Crime Act that property liable to forfeiture should be preserved for that purpose.

The Australian Federal Police also gave evidence that the ability to access restrained assets for legal costs was open to abuse by criminals. As Commander Ian McCartney, of the AFP, said:

When the proceeds of crime legislation was brought in in 1987 there was an ability for suspects to access assets that had been restrained, for legal costs. We believe that that system was abused. It was used by suspects to frustrate the system and, basically, siphon off the assets that had been restrained.

The opposition supports the objectives of the Proceeds of Crime Act and accepts the advice of the Australian Federal Police. We therefore support preventing defendants from accessing restrained assets for expenditure on legal costs. This principle should be reflected in other unexplained wealth legislation as it is in the Proceeds of Crime Act. It is not necessary to revisit the importance of this uniformity. Therefore, the opposition will not be supporting the Greens amendments.

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

Can I perhaps deal with Senator Xenophon's questions. Senator Xenophon, in relation to the quantum of the assets seized under the legislation which this bill amends, I am advised that because of limitations in the existing act, which this legislation seeks to correct, there have been no assets seized. The legislation, as I am advised, as currently written, has been ineffective and that is why this bill is being brought forward by the government, to make it more effective through the various measures that the chamber has been discussing.

Secondly, Senator, you asked whether the government has given any consideration to whether or not organised criminal gangs or organised criminal syndicates will seek to, as it were, siphon or launder assets through associated entities. Of course, the government has considered that. That is always an issue in legislation of this kind and the legislation does, as I understand it, contain associated entity provisions and the capacity to trace through associated entities, trusts, third-party structures so that the purpose of the legislation cannot be thwarted by channelling or funnelling money through devices of that character.

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

I thank the Attorney for his answer. I have one more quick comment to make, not to hold up this bill, and also a question or something for the government to consider. I think it is important to put it on the record. If the government could give an idea—and I am happy for this to be taken on notice—as to what is expected in terms of the additional amounts in unexplained wealth that could be seized.

I do not think anyone can say that I am a great fan of the South Australian government on a number of issues, but they did come up with some interesting legislation that has since lapsed, last year, that extended the seizure of assets of those convicted of trafficking commercial quantities of drugs and, if it was a prescribed drug offender, whether it also involved the seizure of assets not related to their drug trafficking. That is something the South Australian government was committed to.

My state colleague, the Hon. John Darley was supportive of that. It has since lapsed. But an issue was raised by the honourable Mr Darley in the context of that as to being able to provide some of the funds for appropriate, effective drug rehabilitation, because the feedback I get from constituents, from those who have been affected by a serious drug problem, is that there just simply are not the resources and the funding for that.

I simply say this to the Attorney to flag the issue, because I think this will be revisited. Firstly, will the Attorney on notice indicate whether any consideration has been given to the South Australian government's approach, since lapsed, of a broader application of the seizure of assets—in other words, the 'all bets are off' approach, which some would say is draconian and others would say would act as a real deterrent. Also, most importantly for me, whether any of the assets seized are being hypothecated to an extent for drug rehabilitation. I have to say to the Attorney, through you, Chair, that I have heard heartbreaking stories from people who have contacted me: those who have a serious substance abuse problem and who cannot get assistance; families with a son who has a raging heroin addiction; and others who have been gripped by crystal methamphetamine addiction, which has just ripped those families apart. There appears to be a lack of appropriate facilities, rehabilitation services and support for them. If we can seize more assets from the organised criminal syndicates that profit from this, the question I respectfully pose to the government, simply to flag it, is: why not use some of those funds to improve rehabilitation services in this country?

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

As you are aware, because I know you take a close interest in this area of policy, there are various estimates as to the value of the criminal economy in Australia. Because of the nature of the covert and surreptitious and hidden nature of what we are dealing with, those estimates are necessarily very vague estimates. But, for example, the Australian Crime Commission has estimated that the annual value of the criminal economy in this country is up to $15 billion. So that is the order of magnitude of which we are speaking. The amount that could be recovered or is usually recovered under legislation of this kind would be but a very small fraction of a sum like that. But we are talking about a very substantial amount of money.

As I pointed out in answer to your previous question, the legislation as currently written has not proved to be effective, which is why we are strengthening it. So it is really impossible to give a reliable estimate as to how much we expect or hope the legislation in its amended form could recover. But if you think about the value of the criminal economy as $15 billion annually in transactions, then that is the order of magnitude with which we are dealing.

In relation to whether or not monies or assets seized under this legislation could be diverted to drug rehabilitation or drug prevention programs, the answer to your question is that, although the proceeds collected or recovered under the act are hypothecated to a proceeds of crime account, the proceeds of crime account is to be spent on crime prevention purposes. As you would be aware, most drug diversion strategies are health matters and not criminal matters. They are programs conducted through the Department of Health, so ordinarily one would not expect so. But that is not to say that there might not be some drug diversion strategies that bear a sufficiently close connection to criminal law enforcement that they might be considered as eligible programs for outlays from the proceeds of crime account. That is something that would have to be assessed on a case by case basis.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

One of the rationales for restricting completely and totally the use of restrained assets for legal defence, which we heard about from Senator Collins as being a reason for the opposition not considering the Greens amendments, is the harmonisation of the approach with the Proceeds of Crimes Act. But I think it is really important to remind everyone that there is a fundamental difference between the Proceeds of Crimes Act and assets that are restrained or seized under that act and unexplained wealth legislation. That fundamental difference is that under the Proceeds of Crimes Act there is a link between a crime, which has been established, and the proceeds of that crime, and then, arguably, everyone would agree to a justifiable restraint or seizure of those assets, which are the proceeds of a crime. With unexplained wealth legislation, where there does not have to be any proof of any crime at all, there merely has to be assets for which a person who is brought to a court is unable to explain where the assets came from.

The Greens amendment is about allowing a court to determine in some circumstances that it is appropriate for the person who is subject to that action to be able to get legal assistance in proving where that unexplained wealth was generated, and then to prove that it was in fact legitimately acquired and not illegitimately acquired. So there is a fundamental difference. The assumption that concerns me is that we are always talking in this case about criminals. That is the fallacious position in a rule of law situation, where we are assuming we have the right person. So we just have to prove it. In fact, what we are talking about here is the ability of a person to be able to defend themselves adequately and fairly so that they have a chance, and, if the assets are indeed legitimately acquired, to be able to establish that.

It is clear, Attorney, that the amendments that the Greens amendments are designed to oppose are amendments that remove any possibility at all in any circumstances that a person could be found to have a legitimate reason to use their restrained assets to defend themselves in court. They are removing that judicial discretion so that there is never a circumstance in which a court can say, 'Weighing everything up, we think it is reasonable to allow this person to use their restrained assets.' What you said in response to the questions from Senator Xenophon is that there have been no assets seized under the current legislation. I am interested to know whether, drawing this back to the Greens amendments, that is because of the exercise of judicial discretion that the government is seeking to remove. Or are there other reasons that the legislation has not been effectively used whereby assets have been restrained?

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

Senator Wright, you correctly point out that there is a difference between proceeds of crime legislation and unexplained wealth legislation in the sense that we know that the assets that are the subject of proceeds of crime legislation are, as it were, the ill-gotten gains of the person whose assets are being seized. In relation to unexplained wealth legislation, there is not a direct relationship established between the assets and the crime. But the difference is not as great as you may think, Senator Wright, because the whole point of unexplained wealth legislation is that, where the statutory tests are satisfied, the unexplained wealth, because it is unexplained in circumstances sufficient to generate a reasonable belief that it was derived from illicit or illegal activity, is treated inferentially as if it were the proceeds of crime or ill-gotten wealth. So it does require an inference to be drawn. But the unexplained wealth is treated as if it were the proceeds of wrongdoing, and therefore the rationale for why the proceeds of crime should not be available for legal defence is the same as the rationale for unexplained wealth if one admits the inference.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to follow up on that, Attorney-General. Thank you for that. I guess what I am saying essentially then is that the inference drawn from unexplained wealth, because it is not explained, is that it is illegitimately acquired. The problem that I see is that by removing any possibility that a person may be able to use the assets that they have to defend themselves you are nobbling their ability to explain the wealth. You are saying that it is unexplained wealth, and it is going to remain unexplained wealth if a person does not have the ability to use their available means in a court of law to explain from where the wealth has been derived. That is the central concern that the Australian Greens have. What we are saying is not that there should always be a capacity to use restrained assets but that we should allow the possibility for a judicial officer who is apprised of all the evidence and information to make a call as to when it may be appropriate.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I have a question for the Attorney-General. It is along the same lines as Senator Wright's question. I would like the Attorney-General to explain this to me so that I understand it. Is there a history of judges exercising their discretion in cases where the criteria for restraining assets have been met and yet the court has decided not to restrain those assets? If there is not a history of that, why is the independence of the judiciary being impeded in this bill?

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

With respect, Senator Leyonhjelm, I do not think this goes to the independence of the judiciary at all. The whole concept of the independence of the judiciary depends upon members of the judicial branch of government—that is, judges—being able to conduct hearings and trials, in this case, according to law without interference. It does not go to the question of whether or not there are limitations placed by the legislature on the way in which the law operates. That the legislature has imposed a particular limitation on what may be done in a court of law is not an interference with the independence of the judiciary. If that were so then, to give a very prosaic example, every act which sets out the law of evidence would be considered to be a limitation on the independence of the judiciary, because nothing is more integral to the processes of a court than the law governing the reception for admissibility of evidence. Yet legislatures, including this parliament, routinely codify the law of evidence, just as they codify various aspects of civil and criminal procedure. So this is not an issue of the independence of the judiciary at all merely because it says that the courts are required to conduct proceedings before them in a particular way according to particularly legislated principles. That is my answer to that observation, Senator.

But as to your first question as to whether there is a history, I am not in a position to inform you whether courts dealing with other legislation have exercised a discretion in one way or another. Every case depends on its own particular facts. But I would counsel against drawing inferences from the fact that certain courts may have resolved certain cases in a certain way if there is a particular, established or uniform judicial attitude to the question.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

One of the major concerns behind the Greens amendments to remove any possibility that a person may be able to use their restrained assets to defend themselves is the implication on legal aid funding. That is because the only alternative then, if anyone is to be able to have any representation in court, is to be thrust onto the legal assistance sector. I would draw your attention to the submission from Victoria Legal Aid in relation to the Senate inquiry into this legislation, which looks at the potential implications for legal aid. The submission indicates that the National Partnership Agreement on Legal Assistance Services currently lists unexplained wealth proceedings like this as a Commonwealth priority for legal aid funding.

The submission suggests that the effect of this bill, whereby there is no possibility of a court determining that it is appropriate for a person subject to the proceedings be able to use their restrained assets to defend themselves, is that it will most likely mean that these persons will now be eligible on financial grounds—because they will potentially not have many assets to their name at all—and having been declared a Commonwealth priority matter, applications, if made, will generally be approved. We know that there is a significant degree of unmet need in the legal assistance sector and that legal aid commissions are struggling to meet the need in relation to minor criminal, major criminal and civil proceedings, and yet we potentially have this effect that these will be priority matters for Commonwealth funding.

The commission goes on to say that:

It is true that legal aid commissions can be reimbursed for the cost of these cases, but a case must be finalised and a bill of costs provided … before reimbursement occurs.

The submission points out that:

As cases can run for many years, significant sums of money can be spent along the way…

Therefore, reimbursement to legal aid commissions will be down the track significantly, in an environment we would all acknowledge is extremely pressing for the legal assistance sector. My question is this: what would be the effect on legal aid funding? Has there been any modelling by the government as to what that effect would be and its consequent effect of less money being available for other very pressing matters?

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

The way in which legal aid services are provided through the state and territory legal aid commissions is ultimately a matter for the state and territory legal aid commissions. The Commonwealth, as you know, is a principal contributor to the funding of state and territory legal aid commissions. You will rightly point out that even though the assets of an accused person, under this legislation, may be frozen or be unavailable—that is, the assets they claim to be their own personal assets—nevertheless they have the capacity to apply for funding through legal aid commissions.

When you suggest that these cases may go for years, certainly there will be some of the most serious character that may go for a considerable period of time. That would be very much an exceptional case. The best way for me to answer your question is to tell you that the manner in which legal aid is distributed and the priorities of this. You and I have debated this issue in different contexts in many fora over the years; you know my view that legal aid ought to be prioritised so that it goes to the neediest cases. There is not enough money in the system, unfortunately, because the needs and demands on legal aid and for legal aid assistance will always outstrip the amount of money that is available for prioritisation and the award of legal aid, in particular instances, is a matter for the state and territory legal aid commissions.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

That begs this question, then: are these the neediest cases? Because, indeed, as the submission from Victoria Legal Aid points out, these proceedings are a Commonwealth priority under the national partnership agreement on legal aid funding and, as a result, commissions would be required to actually give priority to those at the expense, potentially, of many other citizens in the country who are seeking to do something in the family court or in relation to other minor criminal matters. The question that I have is this: is this the best use of legal aid funding and to what extent has the government taken into account the fact that money is being required to be used for these sorts of proceedings, when in fact the money would potentially be available from the restrained assets that are there, which will mean that that money is not available for others?

In asking you to respond to that question, I would also say that the suggestion that some of these matters will be lengthy and that there will be a long lag time and potentially a cost-flow issue, if you like, for legal aid commissions to be able to recover any costs that they can recover comes from the submission from Victoria Legal Aid. Indeed, the government has recently announced $11 million of extra funding for litigation specialists tasked with conducting confiscation proceedings such as these and for forensic accountants, which indicates the complexity of these sorts of cases and how it is not hard to imagine that someone defending themselves to explain where their wealth came from may indeed need significant resources devoted to them from the legal assistance sector to be able to have recourse to that kind of forensic accounting and legal expertise as well. These are going to be expensive cases and it will be legal aid commissions that are required to fund them, because they are a priority matter for the Commonwealth under the partnership agreement. What are going to be the implications for those needier people that you would suggest should be prioritised?

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

I think you make a good point. As you know, the partnership agreement is currently the subject of renegotiation. That is happening as we speak for the national partnership agreement. The point you make will be considered and is being considered in the course of the negotiation.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am also interested in further implications for the legal assistance sector, again, by removing any possibility that a court could assess that it is appropriate in some cases to allow a person's own restrained assets to be used to defend them in a court under our rule of law. The Victoria Legal Aid submission indicates that directing persons exposed to unexplained wealth proceedings into the taxpayer funded legal aid scheme would certainly expose legal aid commissions to greater administrative burden as they take up more of a role in claims and cost management of these matters. That is because they are potentially protracted and complex proceedings. These would also be for a class of client who Victoria Legal Aid would not typically consider to be a priority client. Again I ask: has the government considered the implications of this and has there been any modelling as to what the likely effect of removing any judicial discretion in this way will have?

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

I am told there has not been modelling done.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Can I ask the Attorney-General: does he think it is relevant to just outcomes in these cases when unexplained wealth issues are brought before a court and necessarily the defendant is subject to representation by legal aid lawyers? Legal aid lawyers, as I pointed out in my speech in the second reading debate, are typically criminal lawyers or family lawyers and would work on $150 an hour, whereas the expertise required in legal representation for these sorts of cases is more complex. Commercial lawyers would be demanding far more than that and would often not accept the legal aid cases in any event. Does that have implications for just outcomes?

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

I think you take a rather pessimistic and, if I may say so, ungenerous view of the professional skill of a lot of the people who work in the legal aid system. We all know that almost all legal aid cases are either family law matters or criminal law matters—those are the two priority jurisdictions—but those criminal lawyers who represent clients in the legal aid system are by no means to be dismissed as being, as it were, the least good lawyers. I can tell you from my own experience of the profession, although I was not a criminal law practitioner, that there are many, many very fine lawyers who work in the legal aid system who could earn a lot more if they worked at the private bar or for one of the big law firms but choose not to do that for the kinds of social justice reasons that you and Senator Wright have in your different ways been adverting to. So I do not think you should be so rude, really, Senator Leyonhjelm, as to dismiss legal aid lawyers as second-rate lawyers, because they are not. It follows from that that one of the competencies of good criminal lawyers is a capacity to deal with commercial crime. Criminal lawyers are not merely people who deal with cases in which the physical dimensions of crime are the most important probative or evidentiary issues, like, for example, murders. It is also within the competencies of good criminal lawyers to deal with the commercial dimensions of criminal conduct, including tracing money through various accounts, trusts and other structures that may be artificially created to launder or conceal its movement. So the competency that you say that criminal lawyers working in the legal aid system lack is not a competency which is entirely missing from that system; it is a competency of an element of criminal practice.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 7540 together.

(1) Schedule 1, item 3, page 3 (lines 9 and 10), to be opposed.

(2) Schedule 1, item 24, page 9 (line 3) to page 11 (line 10), to be opposed.

The TEMPORARY CHAIRMAN: The question is:

That schedule 1 item 3 and item 24 stand as printed.

The TEMPORARY CHAIRMAN: The question now is:

That the bill stand as printed.

Question agreed to.

The TEMPORARY CHAIRMAN: The question is:

That the bill be reported.

Question agree to.

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

I move:

That the report of the committee be adopted.