Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to speak on the Crimes and Other Legislation Amendment (Omnibus No.1) Bill 2024. The omnibus bill makes a range of changes to our criminal law investigation and enforcement apparatus. It is a bill that has received appropriate scrutiny through the Parliamentary Joint Committee on Intelligence and Security, and as a result of the scrutiny of that bill there are some minor changes that will now take place. Following that scrutiny, the government worked with the coalition to settle the amendments that will be made to the bill and otherwise improve the bill. We welcome that sensible approach, and in light of the amendments, as accepted by the government and recommended by the PJCIS, we are pleased to support the bill.

In terms of the bill itself, there are five schedules. The first schedule relates to the seizure of digital assets. The first schedule amends the Crimes Act, the Proceeds of Crimes Act and the National Anti-Corruption Commission Act to enhance the legal framework relating to the seizure of digital assets. The proposed amendments are going to expressly clarify that a warrant may authorise the seizure of digital assets and that an executing officer is able to access a person's digital wallet and transfer its contents as a means of, in this case, 'seizing' the digital asset.

It's 2024. Technology has rapidly advanced, as have our criminals. They are increasingly sophisticated and they are now using cryptocurrency as a way of storing and distributing the proceeds of illicit activities. In fact, evidence before the PJCIS has made it very clear that this is an issue that is frequently encountered by the Australian Federal Police. Indeed, the AFP made the point to members of the PJCIS that it had restrained more than $41 million in cryptocurrency across the 2022-23 financial year alone. In fact, in one large-scale disruption of a money-laundering operation in 2023, the AFP executed 13 warrants and charged 10 alleged offenders with approximately $215 million in criminal assets restrained to date, including over $30 million in cryptocurrency.

There is no real argument about the scale of the problem or the need to have adequate powers to issue search warrants for and to seize digital assets such as cryptocurrencies. Currently, under the Crimes Act, police are permitted to seize certain items discovered in the course of executing the warrant. To lawfully do so, the officer must believe on reasonable grounds that the item is evidential material in relation to the offence and seizure is necessary to prevent concealment, loss, destruction or its use in committing an offence. Unfortunately, these thresholds just don't cut it, and again this refers to the advancement of technology. We're in 2024, so these technologies just don't cut it in the age of digital assets and cryptocurrency.

By way of illustration, where large sums of physical cash are found during a search warrant, it maybe relatively easy for an executing officer to believe on reasonable grounds that the funds are tainted property—that is, the proceeds of crime—and that seizure is necessary, but the same cannot be said of digital assets like cryptocurrency. The mere holding of large amounts of a digital asset is unlikely on its own to be suspicious. There would need to be a level of analysis to develop some understanding of the source of those funds and the reason for holding digital assets that presently have a large value. Among other reasons, this is because there are sometimes legitimate reasons to hold digital assets that have a large value. For instance, the value of the asset may have changed significantly since it was obtained, noting that cryptocurrencies are notoriously volatile and changes in their value are therefore common.

On the other side of the ledger, if police cannot take immediate action, that then means that the risk is high. Unlike physical assets such as cash, criminals can remotely and near instantaneously—this is where there is a huge problem—move a digital asset beyond the reach of law enforcement via an online transaction. To deal with those issues, schedule 1 of the bill proposes to lower the threshold for lawfully seizing digital assets. To seize those assets, an officer must reasonably suspect that the digital asset is evidential shall material and that seizing the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.

We would say that the revised threshold is appropriate given the unique challenges created by the discovery of digital assets in the course of executing a search warrant. In relation to schedule 2, digital currency exchanges, schedule 2 of the bill relates to the Proceeds of Crime Act and its interaction with digital currency exchanges. The Proceeds of Crime Act gives law enforcement agencies broad powers to monitor, freeze, restrain and forfeit proceeds and instruments of a crime. This includes investigative and freezing powers in relation to financial institutions. The proposed amendments to the bill that we have before the Senate will extend those investigative and freezing powers in relation to certain digital currency exchanges. Importantly, this expansion of the Proceeds of Crime Act retains the existing safeguards. These existing safeguards include independent oversight by a magistrate, limitations on the time during which orders made under the act can operate and powers to vary a freezing order in appropriate cases. When you look at the amendment to the act but also the fact that we are retaining the existing safeguards, you see that the net effect of this is to ensure that freezing and monitoring orders under the Proceeds of Crime Act can be applied to Australian based cryptocurrency exchanges in the same way as to traditional financial institutions. Again, these are appropriate changes and we welcome them.

Schedule 3 to this bill deals with what are known as Commonwealth penalty units. Schedule 3 to the bill will increase the value of a Commonwealth penalty unit to $330. In other words, $330 will be the value of one Commonwealth penalty unit. What a penalty unit does is to set the maximum financial penalty that can be awarded by a court for an offence. Ordinarily, the value of a penalty unit is indexed every three years in accordance with CPI. The value of a penalty unit at the time that the coalition left office in May 2022 was $222. This is now the third time in less than two years that the Albanese government has increased the value of penalty units, so there's been a 49 per cent increase in the value of Commonwealth penalty units over an 18-month period. On 1 January 2023, the value of penalty units increased from $222 to $275, and then, in July of 2023, they increased it to $313. When the changes in schedule 3 of this bill—the measure we are discussing—come into force, they will lift it to $330.

The government explains the rationale for the latest increase as follows:

The current penalty unit amount does not act as an effective deterrent for the most serious offending.

The reality, of course, as we all know, is that this is actually a revenue measure for the Albanese government. While we do not object in principle to increases in maximum penalties imposed by courts for those convicted of a crime, there is a slew of regulatory offences, such as a failure to lodge a business activity statement on time—let's be clear about this: it is something of which small businesses should be aware—for which the ATO will impose a penalty equivalent to one penalty unit every 28 days. While we agree with the bill we are debating here in the Senate, it should not go without comment that the Albanese government has slugged small businesses. We all saw the front pages of the newspapers yesterday, which showed the record number of small businesses in Australia that are going insolvent because of the regulatory burden that has been placed on them by the Albanese government—the costs, complexity and confusion. A business that has to close employs no-one, and we now have a record high number of small businesses in this country that have closed their doors because of the regulatory burden imposed on them by the Albanese government.

So, as I said, this extends further than the bill that we're talking about. Effectively, the Albanese government has slugged small businesses with a 49 per cent increase in penalties for late paperwork, and these poor people don't sleep at the best of times. They work eight days a week, 25 hours a day. They never sleep. They don't pay themselves super, and under the Albanese government they're not paying themselves a salary. Now, for late paperwork, there is a 49 per cent increase in the penalty unit that can be applied.

Schedule 4 amends the Telecommunications (Interception and Access) Act to clarify the functions of the Communications Access Coordinator in the Attorney-General's Department and create the position of Communications Security Coordinator within the Department of Home Affairs. Essentially, this change reflects changes to the administrative arrangements under the current government. While there are no concerns about the specifics of the measure in this schedule, this is symptomatic of a broader concern, which relates to the concentration of national security operational functions in the Attorney-General's Department, the same department that exercises oversight of those functions. I am sure Senator Paterson would agree that this is a model that raises legitimate questions.

Schedule 5, information sharing with state and territory oversight bodies, deals with information-sharing arrangements under, again, the Telecommunications (Interception and Access) Act. It's going to amend the arrangements that apply to state-level bodies which oversee state based integrity agencies. I note that this is not the integrity agencies themselves—that is very important to note—like the ICAC in South Australia. It is the oversight bodies for those state agencies—so it is a fundamental difference; it is the inspectors that are meant to ensure the state integrity agencies exercise their powers appropriately.

New evidence before the PJCIS made clear that limitations in the legislations are causing difficulty for state based oversight bodies to discharge their functions. These limitations arise because, under the TIA Act, the oversight bodies are only able to receive information for a permitted purpose or for an eligible purpose, but the definitions of these terms do not capture all of the functions that the oversight bodies are meant to perform. So the changes in schedule 5 were welcomed by the PJCIS, with one minor recommendation. That has now been addressed, and, as such, we welcome the straightforward changes.

It's just worth commenting on two additional changes in the bill. In addition to the matters considered by the PJCIS, the government proposed two additional amendments and has worked with the coalition on those two issues. The first change pushes back the sunsetting arrangements for the security provisions in the Criminal Code by 18 months. The secrecy provisions are currently due to sunset on 29 December this year. What this amendment will do is push back this date to 29 June 2026, and we have no objection to this. It is in no-one's interest for Commonwealth secrecy offences to lapse without a replacement being ready to go, and it's clear the Attorney won't be in a position to pass his proposed changes to Commonwealth secrecy provisions before the 29 December deadline.

The second change relates to a particular definition in the Criminal Code: hors de combat. This is a term that, roughly speaking, describes a person who cannot legitimately be targeted in military operations. The government have told us they're replacing the existing definition to address a longstanding drafting error, dating back to the 2000s. The Attorney-General's office advises us that the gist of the error is that the definition uses the word 'and' when it should use the word 'or'. We have been assured that the changes avoid a potential unintended consequence but do not otherwise change the intended operation or effect of the definition. I am relying on the advice provided to us by the Attorney-General's office about the intent and the effect of the change and support it on the basis of the assurance that we have been provided. As such we are pleased to support the bill. (Time expired)

David Shoebridge (NSW, Australian Greens) Share this | Link to 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.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

Well, I certainly won't be supporting the Greens' second reading amendment on the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024. It astounds me, with all due respect to Senator Shoebridge, who I served with on the Legal and Constitutional Affairs Committee, that he made that blithe argument—and I'll call it a 'blithe' argument—around calibrating fees based on someone's income without once referring to a fundamental principle of our justice system, which is that everyone should be treated equally before the law—not once! Not once did Senator Shoebridge actually make the point that everyone should be treated equally before the law.

He just went into a blithe recitation saying, 'Well, the fine system can have uneven impacts in terms of this and that. We should just abandon it,' and said—for the first time under any Commonwealth law that I'm aware of—we should start to treat people differently under our justice system based upon their individual circumstances in terms of the application of penalties in our justice system. For the first time, Senator Shoebridge is proposing a change to our system of laws, our rule of law, whereby people would be treated differently based on their individual characteristics.

We have a system based on rule of law, which means that everyone who attends before our court system is treated equally. That is a fundamental principle. If you go to many of the courts around our country, you will see the statue of Justitia, typically portrayed as a woman with a sword, a scale of justice and a blindfold. Why does she have a blindfold? Because it doesn't matter who appears in our court system—it doesn't matter their religion, their ethnicity or their background or whether they came to this country a year ago or they've been here as part of our oldest living community, our First Nations people—everyone should be treated equally in our justice system. The law should be treated equally and applied to everyone equally.

We have a system of rule of law, not rule of men, which says everyone should be treated equally, yet, in that blithe—and I'll call it 'blithe'—contribution to the debate, Senator Shoebridge would tear that principle down. It's just symptomatic of the radical, extreme policies we hear in this place from the Greens again and again and again. Rule of law says everyone should be treated equally before the law—a fundamental principle of our system of justice—and yet, in that 10-minute contribution, Senator Shoebridge would tear away that constitutional and legal principle going all the way back to John Locke's Second Treatise of Government and even beyond that.

It's a fundamental principle of our system. It doesn't matter if you're a king or a serf. We're all treated the same before the law. That's a fundamental principle that Senator Shoebridge would tear down with that blithe contribution. It's very, very disappointing, and another radical, extreme proposition put by the Australian Greens.

This is what I believe. It doesn't matter who you are—a millionaire, someone who's on the age pension—it doesn't matter what your ethnicity is, how long you've been in this country, or whether or not you're a new Australian or you can trace your heritage back thousands of years. It doesn't matter. When you attend a court, the judge applies the law equally to everyone. That's a fundamental principle of our justice system, and it's certainly a hill I'd be prepared to die on. I think the way that Senator Shoebridge presents that amendment would lead to all sorts of injustices and open the door up to people being treated differently, based on their individual circumstances, in our laws. It is fundamentally flawed, Senator Shoebridge.

I will take the interjection, Senator Shoebridge. What particularly disappoints me in that contribution is that not once did you weigh up the principle of equality before the law. You didn't actually once weigh that principle up. You didn't give it any consideration at all in terms of what a fundamental change to our justice system that would constitute—not once. It's very atypical of you, Senator Shoebridge.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Scarr, can I just interrupt you for one second. It is the right of all senators in this chamber to be heard in silence, so I would appreciate respect across the chamber. It is quite disruptive. Senator Scarr, you have the call. Continue your contribution.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

The basic proposition is that our laws should not differentiate between Australians on the basis of their individual characteristics, whatever those characteristics are. They should treat everyone equally. Everyone should be treated equally under the law. That is a basic, fundamental proposition underpinning our justice system. In my view, we depart from that proposition at great risk to our justice system. I say, through you, Acting Deputy President Cox, to all the members of this chamber: do not support this extreme amendment being put forward by the Greens. Whilst it is put in a blithe way, as if this is simply a natural progression in terms of our justice system, it is far, far more profoundly dangerous than that, because it tears at one of the fundamental principles of our justice system—that everyone should be treated equally before the law.

There are some other fundamental flaws with respect to what the Greens are proposing in terms of this radical amendment. The penalties which are set under our laws are maximum penalties. They're maximum penalties. Of course, we—those in the coalition supporting the principles of the rule of law—respect that our judges, our justices, need to have discretion when they apply the law to the individual circumstances of a case. They do that, in terms of how they apply the law, and they should continue to do that. We don't take issue with that principle. We support that issue. But what Senator Shoebridge's amendment would seek to do is change the law in its application to different categories of people based on their particular attributes. That is a pathway leading to great danger, and it would diminish the rule of law in this country. It's a fundamental principle, and I call upon all senators to defend our system and to defend that concept.

In the court where I was admitted, the Supreme Court of Queensland, where I was admitted as a lawyer, to my profession, back in 1994, I walked past the statue of Justicia. She is blindfolded. She has a sword, the scales of justice and a blindfold. That blindfold means that our principle of justice is blind as to the particular attributes of those appearing before the courts. Everyone is, or should be, treated equally in our courts. Everyone should be treated equally in our courts—that needs to be the fundamental principle that underpins our system of justice. The penalties included in our laws are maximum penalties, and so judges and justices can consider the individual circumstances of the case. And they should consider the individual circumstances of the case when they set the penalty that applies in an individual case. When they set the penalty to apply in an individual case, they should apply the rule of law—principles of common law and statute law—that apply to the individual case. It is not for me, as a senator in this place, to impose my view on what a judge should apply in a particular case. It should be up to judicial discretion. Again, it's a principle of the rule of law—everyone being treated equally before the law and the law being applied equally to everyone in our community. It's absolutely a fundamental principle of the rule of law.

The other point I would make with respect to this proposition is that, whilst I accept the comments Senator Shoebridge made around the increase in the amount of penalty units over the course of the last few years, the fact of the matter is that those penalty units are the same in our legislation and in our criminal justice system. The maximums that apply—and they are maximums—apply equally to everyone. I would hate to see this country move away from that principle of equality of law. I would hate to see us in this chamber start to look deeply into laws and say, 'How do we tweak this law to apply to that category of people?' or, 'How are we going to tweak that law to apply to another category of people?' We would cease to be the society we are if we moved down that path.

I think one of the strengths of our society is that, it doesn't matter if you're a millionaire or an age pensioner, it doesn't matter what your ethnicity is, it doesn't matter what your religion is, it doesn't matter whether you can trace your heritage back for thousands of years in this country or you're a new Australian, when we enter into that courtroom we're all treated the same. We're all treated equally. That's how our laws should respond.

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

Rubbish! That's not how it works.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

I note Senator Shoebridge says, 'Rubbish.' I know, Senator Shoebridge, under your philosophy, under the Greens' philosophy—

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Shoebridge on a point of order?

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

Senator Scarr is misrepresenting my interjection. I said, 'That's not how it works.' We know that's not how the criminal justice system works.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Shoebridge, that is not a point of order. Senator Scarr, before I allocate the call to you, I remind all senators to continue their contributions through the chair instead of across the chamber to assist in the contributions being respectful.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

Through you, Acting Deputy President, I note that Senator Shoebridge referred to my propositions as 'rubbish'. It doesn't surprise me that he did so, because the radical, extreme Greens party doesn't have respect for the fundamental principles underlying our Australian democracy. They have a different philosophical view. My concern is to defend some of the fundamental democratic principles of our country's judicial system, our justice system, against the attack from the radical, extreme Greens. I'll continue to do so. Senator Shoebridge can interject and take issue with my point of view. That's fine. I accept Senator Shoebridge has a different philosophical disposition. It's a radical disposition. It's an extreme disposition. He seeks to undermine the rule of law in this country. It's his right to come into this place—

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Shoebridge on a point of order?

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

Senator Scarr is now falsely seeking to impugn my motives and seeking to attack and make personal reflections on another member. I would ask him to withdraw them and to desist from them. It's contrary to the standing orders. He knows it's contrary to the standing orders. He says he respects the rule of law, and he's flouting the standing orders right now.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Scarr, I invite you to withdraw the comments impugning Senator Shoebridge's motives.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

I withdraw.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

From my perspective, when the Greens—and I'll speak generally—put forward resolutions like this, they are actually providing an insight into their radical, ideological philosophy. Far from impugning anyone's motives, in many respects what is proposed in this second reading amendment is entirely consistent with their philosophical perspective. The motivation aligns with the political disposition of the Greens party. It's radical, it's extreme and it seeks to attack some of the fundamental principles underpinning our justice system. Far from impugning anyone's motives, I'm making the observation that this amendment is entirely consistent with their radical, ideological, philosophical disposition, which I fiercely contend with. It baffles me somewhat to hear people being particularly sensitive about that. However, let's move on.

I believe that our justice system, which treats everyone equally before the law, has served us extremely well and that, every time an Australian enters into our court system, justice should be blind as to their individual attributes: their income, their religion, their ethnicity or their connections with people of power. It shouldn't matter if I, as a senator, or someone who is a constituent of mine enter into a court subject to our justice system; we should be treated equally. We should be treated the same. There should be no distinction made based on our personal attributes, and that is the fundamental philosophical point at stake in terms of this amendment.

There are those—the Greens, with their radical, extreme ideology—who would like us to be judged in our legal system based on our personal attributes, disconnected from the offence which has been committed or is alleged to have been committed. I would hope that the vast majority of senators in this place agree with the current system—that we are all equal before the law and that Lady Justice is blindfolded as to the personal attributes of those entering into our courts. It doesn't matter if you're a senator or if you're someone sitting in the public gallery today; we are all treated equally before the law. That is a fundamental principle which must be fiercely defended. On that basis, I beseech all the senators in this chamber to vote against this ill-considered, radical, extreme amendment put forward by the Greens.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I rise to move the second reading amendment standing in my name to the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024. I want to take this opportunity to remind the Senate that there is a committee in this building called the Parliamentary Joint Committee on Human Rights. This committee, which I am a member of, does the job of scrutinising legislation and regulations that come through this place and checks for human rights compatibility. It is a committee whose work you should all be paying far more attention to, considering it is your individual responsibility to your constituents to represent their rights. This includes their inalienable human rights. This country has agreed to be bound by these obligations, and that is what you all committed to upholding when you became members of parliament.

Unfortunately, we know that human rights are something the colony of so-called Australia has little respect for, no matter who is in government. The culture in this place is one of impunity for human rights violations, with human rights being, at best, selectively applied, depending on political whims. Respecting human rights does not just mean simply pointing at some words on a piece of paper which you choose to ignore, explain away or break with at any time. It is a practice that needs to be applied in our every action. From where we are now, it's about a significant shift in culture.

The government and the Attorney-General consider this bill, which proposes to expand the powers to search, seize and freeze digital assets like cryptocurrency, compatible with human rights. This is strange, considering the human rights committee brought to the attention of the Senate the fact that the legislation being amended was never scrutinised for human rights compliance in the first place. This includes the following: the Proceeds of Crime Act, the Crimes Act, the Telecommunications Act. When questioned by the human rights committee on the human rights compatibility of the expansion of the rights contained in this bill, the Attorney-General's answer was, 'Well, we already have this power, so what is the problem in expanding it to another area?' and, 'This is a necessary move to stop criminals.' This raises the fundamental question: how can we justify expanding powers under laws that may already violate basic human rights?

Most people in this country are probably not aware of the full extent of the hugely expansive powers police have across the country in the name of our safety. One of the key issues is the right to privacy. Whistleblower and antisurveillance advocate Edward Snowden stated:

Arguing that you don't care about the right to privacy because you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say.

Under this bill, law enforcement agencies could search for and seize digital assets remotely, meaning cops could search through a person's computer or smartphone even if the device belongs to someone else. That means the police can access your smartphone because it was once used by someone that they are investigating, even if you had no involvement.

This bill also lowers the threshold for seizing digital assets. Currently, a cop must reasonably believe that the property they're seizing is linked to a crime. With the changes in this bill, the need to only 'reasonably suspect it' is the difference between belief and suspicion, but it's huge in legal terms of safeguarding peoples' rights. Suspecting something doesn't require much proof and could lead to serious overreach and unnecessary seizure of personal property, which could have devastating consequences, especially for innocent individuals.

Let's not forget the Proceeds of Crimes Act—which I think the colony should be criminalised for because you are accepting the proceeds of crime as it's stolen land and you benefit from the proceeds of stolen land. But that's another speech for another time. In relation to this bill, this Proceeds of Crime Act has provisions that allow for the freezing or confiscation of assets even if the person is acquitted of a crime. Think about that. You could be cleared of wrongdoing in a court yet still lose your property. This flies in the face of the right to a fair trial, another fundamental human right.

Additionally, there is a need to scrutinise the powers being granted to integrity agencies under this bill. It expands their ability to receive and use intercepted communications for oversight purposes. While this may sound good on the surface, there's a risk of privacy breaches when agencies gain increased access to personal communications without clear, strong safeguards. Are we confident these measures are proportionate to the task of ensuring integrity, or are we simply broadening the scope for surveillance without adequate checks? Are we giving in to a path to Orwell's Nineteen Eighty-Four? This government would do well to get its priorities in order and act in the best interests of the people as first priority.

Why are we seeing constant further expansion of policing and surveillance instead of bills and actions that implement the recommendation of the Royal Commission into Aboriginal Deaths in Custody? Why aren't we seeing a national effort to measure all our existing legislation against minimum human rights standards and seeking ways to facilitate the rights of communities as self-determined by them? These are rights all of you are obliged to uphold in each of your offices and portfolios, and you must do so as a priority.

The bottom line is that, before we expand any of these powers through any legislation, we must first ensure the laws they build on are fundamentally sound from a human rights perspective. Human rights are not a joke. Human rights are something we all should have in this country, and this parliament and this government should not play with people's basic human rights. This means conducting a full foundational human rights assessment of the Crimes Act, the Proceeds of Crime Act and the Telecommunications (Interception and Access) Act.

What's the point of having a committee in this place—taxpayers' money—where we sit around, talk about human rights and only get given certain legislation that the government decide that we can look at? We go through it with expertise from human rights lawyers around that table and we identify breaches of human rights in the legislation that comes before us. Then we write a report. Then we send it to the government, and the government just come up with all the reasons why they want to continue to breach human rights. Talk about a waste of time. Talk about a waste of taxpayers' money. Talk about denying basic human rights for every person in this country. It's shameful. Why have committees for the sake of committees? It's got to do something, right? Surely. Anyway, maybe I'm just in the wrong place; I don't know. But I'm not going anywhere, so you will have to put up with it!

Until this is done, it is reckless to move forward with these bills that haven't been scrutinised by the human rights committee. Expanding powers in areas that continue to breach human rights is a breach of human rights. Giving more powers to the cops to go through peoples' phones, giving more powers to the cops to take peoples' assets—it's disgusting. What are you saying? Who runs this country, the cops or the government? There are serious systemic problems within the police force. We know that. They target innocent people too. So, unless those human rights issues are dealt with, we cannot pass this bill.

Stop the genocide.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Thorpe, I just advise you that Senator Shoebridge has moved the second reading amendment, so if you would foreshadow it.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I foreshadow.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I move my amendment on sheet 2979. I want to quickly take 60 seconds. I won't take longer than the minister's time, because I know he needs to say things, but I want to explain quickly to the Australian people what my amendment will do. It will bring the mechanism for financial penalties in the Parliamentary Privileges Act into line with financial penalties in the majority of legislation, replacing hard numbers with a mechanism to adjust for inflation as well. A penalty unit was established as a way of ensuring financial penalties remained in check with inflation as per the Crimes Act. We use penalty units in tax legislation and occupational health and safety legislation, but apparently the Parliamentary Privileges Act of 1987—I reinforce that this was back in 1987, Australians—is locked into financial penalties of up to $5,000 for a person and $25,000 for a corporation, with no adjustment for inflation.

The average punter stares down the barrel of penalty units for a financial penalty. Why not a penalty for the people that mislead parliament? By voting down this amendment, the major parties are seeking to limit accountability for their ministers and, quite frankly, I thought we were turning over a leaf here and leading by example. So I just don't know why you won't vote this through. We should be held accountable like everybody else in society, and that is the way it needs to go down.

Sue Lines (President) Share this | Link to this | Hansard source

I'll just inform the Senate that it's my understanding that that amendment is a committee stage amendment.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I want to thank all honourable members for their contributions to the debate on the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024. The bill will update, improve and clarify the intended operation of key provisions in the Crimes Act 1914, the Proceeds of Crime Act 2002, the National Anti-Corruption Commission Act 2022, the Telecommunications (Interception and Access) Act 1979, the Telecommunications Act 1997 and the Criminal Code Act 1995. These amendments are required to support the proper administration of regulatory, law enforcement and oversight processes.

The amendments to the Crimes Act and the Proceeds of Crime Act, and consequential amendments to the National Anti-Corruption Commission Act, in schedule 1 of the bill will modernise law enforcement search and seizure powers for cryptocurrency and other digital assets. These amendments are necessary because of the evolving nature of crime and the tools that criminals are using, including things like cryptocurrency and other digital assets. These amendments are intended to keep pace with those actions of criminals and ensure that law enforcement bodies have the powers that they need.

Similarly, the amendments to the Proceeds of Crime Act in schedule 2 of the bill will modernise law enforcement powers in relation to information-gathering powers and freezing orders to apply them to cryptocurrency exchanges and the accounts they administer, and that's for the same reason I outlined before.

The amendments to the Crimes Act in schedule 3 of the bill will increase the value of the Commonwealth penalty unit to ensure that financial penalties for Commonwealth offences remain an effective deterrent to unlawful behaviour.

The amendments to the Telecommunications Act and the Telecommunications (Interception and Access) Act in schedule 4 of the bill will provide certainty that the Attorney-General's Department is responsible for carrying out the telecommunications access functions through the Communications Access Coordinator and that the Department of Home Affairs is responsible for carrying out certain telecommunications security functions through the Communications Security Coordinator. The amendments to the Telecommunications (Interception and Access) Act in schedule 5 of the bill will support improved oversight of state and territory integrity agencies and their use of interception powers.

Amendments to the Criminal Code in schedule 6 will extend the sunsetting date of the secrecy offence in section 122.4 to 29 June 2026 to ensure that sensitive Commonwealth information continues to be protected while the government considers and implements two recent reviews of Commonwealth secrecy provisions. Amendments to the Criminal Code in schedule 7 will retrospectively amend the definition of 'hors de combat' in the dictionary of the Criminal Code to correct a drafting error and to confirm consistency between Australian domestic law and international law in relation to war crimes obligations, reflecting the original legislative intent when the provision was introduced in 2002.

In conclusion, the Crimes and Other Legislation Amendment (Omnibus No.1) Bill 2024 will support the proper administration of regulatory and oversight processes, assist law enforcement agencies, deter criminal behaviour to enhance the protection of the Australian community and ensure Australia is able to uphold its international obligations.

As I've said already in this speech—and I note we're about 45 seconds from the 11.15 am cut-off, so I might as well reiterate the point—as Australia has evolved into a modern digital economy, law enforcement agencies are seeing an increase in criminals' use of digital assets, including cryptocurrency, to facilitate their offending and as a means to hold and distribute the benefits derived from their offending.

Investigations involving digital assets have been associated with a variety of crime types, including the purchase of drugs; child exploitation material and firearms, through dark-web markets; ransomware and cyber-related offences; and money laundering and financing terrorist organisations. It's therefore imperative that law enforcement agencies have the appropriate tools available to continue efforts to address some of the evolving and unique issues and complexities that arise in the search for and seizure of digital assets.

Debate interrupted.