BILLS - Unexplained Wealth Legislation Amendment Bill 2018 - Second Reading


Senator IAN MACDONALD (Queensland) (12:10): I chair the Legal and Constitutional Affairs Legislation Committee, which conducted an inquiry into the Unexplained Wealth Legislation Amendment Bill 2018. The matter was referred to the committee at the end of June this year so that relevant groups affected by the bill were provided with an opportunity to raise concerns with the proposed scheme. The call for submissions resulted in submissions from seven submitters: the Adelaide Magistrates Court, the Civil Liberties Australia, the Legal Services Commission of South Australia, the Police Federation of Australia, the Law Council of Australia, Mr Edward Greaves and the Department of Home Affairs. I thank all of those submitters for their contributions, which did help the committee in coming to some conclusions and in recommending that the bill be adopted.

I note in passing that the Law Council of Australia, of which I was once a member and perhaps still am—I'm not quite sure—is always very helpful with the submissions it makes to the Legal and Constitutional Affairs Legislation Committee. It was able to get a report together in a few weeks, and as usual its high-quality reports are always welcome. I'm a little amused that, in the approach to look at the amalgamation of the Federal Circuit Court and the Family Court, which the government wants to do to try and address some of the enormous delays that occur in that court, the Law Council is being used, by people who seem to want to delay the progress of that family law consolidation and reform bill, as a reason to keep extending the dates because it supposedly needs more than three or four months to prepare a submission. I know that's not correct. I know the Law Council is better than that. It is able to get submissions in in a very short period of time.

This proposal to amalgamate the Federal Circuit Court with the Family Court has been around for a long time. The Law Council has had an early draft of the legislation, and I'm sure it is well aware of what its approach will be and what the approach of many of its members will be, although I do acknowledge that within the Law Council, which represents all lawyers across Australia, there will be many different views. But the universal problem that everyone knows of and wants to try and address is the huge delays in the Family Court, which are causing real distress to Australian families. People involved—and it's unfortunate they are involved—in the family law courts have enough problems as it is without having to wait for up to three years to get a decision on matters that came before the court. One of the reasons is that there are two courts that deal with family law matters in Australia: the Federal Circuit Court, which appears to have a record of dealing much more efficiently with work before it, and the Family Court of Australia, which seems to take a longer time to resolve matters. One of the problems is that very often matters are transferred between both courts, which have different structures and different rules, and that causes delays and expense.

What the government is proposing is that both courts continue to operate as separate courts but have the same administrative system and the same court rules and be headed by one chief judge, who would be the chief judge of both the Federal Circuit Court and the Family Court of Australia, so that a lot of the disparity between the two courts would disappear. It's thought by those involved in the area, practitioners and participants alike, that that will make it much quicker and cheaper to get results for those who are obliged to be involved in the Family Court system.

I mention in passing that I'm disappointed that the Labor Party and the Greens, for some reason, seem to want to delay this until next year, when we all know there will be an election. That means that, at the very best, if the Labor Party and the Greens get their own way on this, it will be at least another 12 months before any action can be taken to deal with the dysfunction of the two courts currently operating in the system. The very weak excuse used by the Labor Party and the Greens is that they are awaiting the Law Reform Commission's report into the family law system. But, as has been explained to them time and again, the Law Reform Commission is not looking at the structures of the courts. I'm pleased to say that my committee has invited the Law Reform Commission along to explain what it is doing in its research into the family law system to confirm that the structure of the courts is not something that it will be particularly focusing on and that it has other areas of focus for its inquiry.

All that means is that those unfortunate people who have had to be in the system won't get relief. We won't be able to do reforms to the court system, which would speed up matters and make them cheaper, for perhaps a year. For those who are concerned about this, I ask them not to ring me or come to my office or the office of any government senator or member of parliament but to go and see the Labor Party and the Greens and ask them why they are delaying these very worthwhile reforms to the Family Law Act.

This is not a matter of playing politics, which seems to be the approach of the shadow Attorney-General. This is about trying to bring real reform, real assistance and real justice to people who unfortunately have found themselves within a system that is currently inefficient and is taking up to three years to get results. If senators and members can put themselves in that position, where there is a dispute in a family law matter, people's lives are put on hold until the court comes in and makes a determination, which is what it is all about. Your life has to be put on hold for three years. That's unacceptable. Everyone acknowledges that.

Why the Labor Party, the Greens and Centre Alliance are part of a process that seems hell-bent on delaying this for another year, I cannot understand. I would urge anyone who has an interest in that matter, who is involved in the family law court system at the moment, to make those views known to members of the Labor Party, the Greens and Centre Alliance and ask them to at least let this first step towards efficiencies take place speedily. This proposal has been around for a long time. There are some entrenched interests who are opposed to it for various reasons, which they would know better than I, but it seems to me that this is a little step in the right direction that should be progressed.

While I have misdirected myself slightly from the subject before us, I simply do that in acknowledging that the Law Council of Australia do not need four or five months to prepare a submission on something that they've known about for a long time and which they've proved, as they did in this report, that they are very capable of dealing with expeditiously. They're assisting the committee and the parliament with worthwhile suggestions as to the veracity or the usefulness of various pieces of legislation that come before the parliament that deal with the legal and constitutional laws of our land.

In its submission to the committee, in relation to this unexplained wealth legislation, the Department of Home Affairs noted:

Serious and organised crime groups are increasingly operating in a more coordinated and organised manner and are frequently controlling activities that span national and international borders.

Given the challenges proposed by the increasingly sophisticated, coordinated and cross-jurisdictional operations of serious and organised crime groups, the Legal and Constitutional Affairs Legislation Committee considered it necessary and timely that the Commonwealth should seek to establish a national scheme to target unexplained wealth.

It's important to note that the bill is a result of consultations between the Commonwealth government and state and territory governments. Also, due to Commonwealth limitations, one or more states must refer their power to the Commonwealth. This will be achieved through a text referral of schedules 1, 2 and 4 from the New South Wales parliament. Therefore, these schedules cannot be amended. The committee does note that there is scope for amendments to be made after the bill has been enacted in its present form, but this can only occur if parties to the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth unanimously agree to the amendments. Consequently, any amendments by the Commonwealth parliament to these schemes would place the national scheme on unexplained wealth in jeopardy.

The committee did note some concerns raised during the inquiry in relation to self-incrimination retrospectively into legal professional privilege; the exemption of the disallowance and immunity from liability; and significant matters in delegated legislation and also in relation to privacy issues. The committee noted that most of the provisions that relate to these concerns are contained in schedules 1, 2 and 4 of the bill, which, as I say, are not able to be amended in this parliament because they require unanimous agreement by all of the state parliaments.

As usual, the committee gave very serious consideration to those issues of concern that were raised. I won't have time to go through all of them, but I'll just indicate the committee's view in relation to some of those concerns that were raised. In relation to retrospectivity, the committee notes that the bill does not criminalise conduct that was otherwise lawful prior to the amendments. The committee was persuaded by the evidence provided by the department and others that it would be almost impossible for law enforcement agencies to prove the precise point in time when property or wealth was acquired. The committee also notes that another act of parliament contains a similar provision, and therefore the bill merely extends current provisions of that other similar act. So the committee thought that, in all of these circumstances, the retrospective application of the bill was justified.

In this bill there are a significant number of matters that could be dealt with in delegated legislation but, having noted the kind of person who may issue notices to financial institutions in self-governing territories, the committee was mindful that the scheme needs to maintain a degree of flexibility, particularly in light of the ACT currently not having an unexplained wealth scheme. The committee further noted that the regulation will be subject to rules of disallowance; so parliament has a view on delegated legislation that can be disallowed, should parliament so agree. It also noted that the operation of the new schedule 1, which includes notices to financial institutions, will be subject to oversight by the Parliamentary Joint Committee on Law Enforcement.

In relation to privacy concerns, the committee considered that the bill appropriately limits the circumstances where disclosure of information to specific authorities for a specified purpose is permitted. Furthermore, the committee is reassured that the use of powers under the relevant act will be reported to the minister annually and is subject to scrutiny of the Parliamentary Joint Committee on Law Enforcement.

In relation to other matters that were raised as a concern, I invite those who might be interested in this piece of legislation to refer to the Senate Legal and Constitutional Affairs Legislation Committee's report into this, which was tabled in this parliament in August of this year. It more fully goes into the concerns raised and the committee's view on those concerns, which were such that, whilst we acknowledge the concerns, there are reasons for them. The committee unanimously decided that those concerns were addressed by the bill or by practice and that, across the board, this was an appropriate piece of legislation.

The committee thought—like I think most Australians and most senators do—that the establishment of a national scheme to target unexplained wealth is very important. The committee came to the conclusion that this bill achieves the right balance between protecting the rights of individuals and providing law enforcement with sufficient tools to deprive serious and organised crime groups of their wealth. If we can do anything that deprives serious and organised crime groups of the huge wealth they've amassed from nefarious means then that is a good thing. That's why the committee came to the conclusion that this was a bill that should be passed by the parliament, and it recommended accordingly.

In conclusion, I again thank the secretariat—Dr Sean Turner, the committee secretary, Ms Pothida Youhorn, our principal research officer, and Ms Kate Morris, the administrative officer—for their assistance to the committee in sifting through the evidence and producing this report. I also thank other members of the committee, including the deputy chair, Senator Pratt, as well as Senator Molan, Senator McKim, Senator Hume and Senator Watt for their contributions to the conclusion the committee has reached. I certainly will be supporting the bill and urge all other senators to do likewise.

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