Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 - Second Reading


Senator IAN MACDONALD (Queensland) (13:54): With reference to the Hansardof the Tasmanian government when Senator McKim was part of that government, it will be interesting to see how many legal advices were tabled in the Tasmanian parliament when the Greens had control of that. I answer Senator McKim by saying: we do have a bill of rights in Australia at the present time. It is called the common law and the courts of the land, which protect the human rights and other rights that we as Australians enjoy, perhaps more so than any other nation in the world.

The Legal and Constitutional Affairs Legislation committee, which I chair and of which Senator Collins is the deputy chair and Senator McKim is a member, inquired into this bill, receiving 12 submissions. The committee has issued a report, which until today I thought was a unanimous report, recommending that the bill be passed. I note that, unusually, the Greens have a set of amendments. Those were not raised in the committee's report to the Senate.

The Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 does a number of things. Principally it amends provisions relating to serious drug offences in the Criminal Code to ensure that they capture all relevant substances and processes. With the Greens recently suggesting, as I read in media reports, that ice was okay and should be decriminalised—I may be verballing the Greens on that—

Honourable senators interjecting

Senator IAN MACDONALD: No, I am not talking about water, either; I am talking about the drug. I may be verballing them; if I am I stand to be corrected.

Senator Siewert: I raise a point of order. The senator knows very well he is verballing us and I ask him to withdraw.

The ACTING DEPUTY PRESIDENT ( Senator Lines ): I do not believe there is a point of order.

Senator IAN MACDONALD: I am only going on what I read in media reports. You will have plenty of opportunity to explain the Greens' provisions and thoughts in relation to the drug ice. The bill that we are dealing with today is another measure in the government's ongoing campaign against dangerous drugs. Whilst Senator McKim says that sometimes we have to get the balance between human rights, our legal rights and the fight against serious drugs, then we have to look at legislation like that we have here. Indeed, this bill is brought about because regrettably in Australia at the moment, there are amongst other things real problems with serious organised crime—not petty criminals down in the backyard—proceeds of that crime and very serious drugs.

This bill is intended by the government—and it seems with the support of the opposition—to tighten up areas, so that our law enforcement agencies can better address the scourge of very serious drugs distributed by serious organised criminal elements. One of the elements of this bill relates to that. Other provisions of the bill enable a wider range of agencies and officials to access and share information obtained by AUSTRAC under the money laundering and counter-terrorism financing bills and to further clarify the circumstances under which information can be shared. It enables a wider range of our law enforcement agencies to access the information obtained by AUSTRAC and also extends the circumstances under which AusCheck can share background checking information it gathers with other Commonwealth, state and territory agencies that perform law enforcement and national security functions.

Senator McKim raised proposed section 319 of the bill, which replaces the old section 319 and relates to a new multipart section dealing with more detailed criteria for any stay on known criminal forfeiture proceedings under the Proceeds of Crime Ac Section 319, the new one, provides:

A court may stay proceedings … if the court considers that it is in the interests of justice to do so.

But then the bill goes on to limit the extent to which the court may stay proceedings, through a number of provisions which are set out in proposed section 319(2) of the bill. The new provisions are designed to prevent a respondent from claiming merely a generalised risk of prejudice—

Debate interrupted.

Senator IAN MACDONALD (Queensland) (21:00): When this debate was interrupted by question time some hours ago I was talking about the report of the Senate Legal and Constitutional Affairs Legislation Committee looking into the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015. We had reached a stage where I was indicating the committee's view on new proposed section 319. Senator McKim, who is a member of the committee and who discussed this in his contribution, indicated that the Greens had some difficulty with this and would be moving amendments. I might say that these were amendments and issues that were not raised with the committee when it tabled what I assumed was a unanimous report but which has turned out, from what the Greens have told us, not to be so. I was indicating that the new proposed section 319 said that a court may under the Proceeds of Crime Act delay any proceedings if the court considers it to be in the interests of justice to do so. But then proposed section 319(2) said that a court may not stay any proceedings on any of the grounds listed, and Senator McKim has gone through those.

I will just reiterate what I was saying when the debate was interrupted, and that is that these grounds set out in proposed subsection (2) are designed to prevent a respondent from claiming merely a generalised risk of prejudice to support a stay of proceedings which would have flow-on effects for the availability of evidence, would impede the operation of the non-conviction based scheme and would frustrate the objects of the Proceeds of Crime Act. I was indicating that this is all about serious criminal activity by organised criminal gangs and by terrorists, and the government is introducing this amending bill as part of its overall fight against crime, particularly organised crime, and crime that supports terrorism around the world.

I do not want to keep the Senate too long but I can refer senators interested in this particular piece of legislation to the report of the committee, which has been tabled in the parliament. There were a number of interesting matters raised by the committee. I refer senators to the amended definition of 'manufacture' in proposed section 305.1(1) which specifies that it includes any process other than cultivation of a plant by which a substance is produced, extracted, refined or transformed into a different substance or converted from one form to another. That amendment responds to a 2013 case in the Victorian Court of Appeal where it interpreted the definition of 'manufacture' to require that the process produce a new substance, not merely convert a substance from one form into another. It is these sorts of legal technicalities that some of this bill is introduced to address.

This bill was looked at by the Scrutiny of Bills Committee—and that has been referred to by previous speakers—a well as the Senate Legal and Constitutional Affairs Legislation Committee. The committee has gone into the bill in some detail. I will mention just some parts of the committee's investigation in relation to the civil forfeiture scheme. The committee took seriously the concerns raised in submissions regarding the fundamental rights and constitutional principles that may be impacted on by these proposed amendments, but at the same time the committee was cognisant of the importance of an effective proceeds of crime regime in combating serious crime and those who benefit from crime, as emphasised by the department and supported by a number of other submitters.

The committee acknowledged the department's advice that these amendments were developed in consultation with key stakeholders, with a view to striking the appropriate balance between effectively combating crime on the one hand and on the other hand respecting the fundamental rights and principles underlying the Australian criminal justice system. The committee noted that the amended legislation will, if necessary, be tested in the courts, which the committee believes will be well placed to determine the questions of constitutionality and fundamental rights that have been raised in this inquiry.

I draw the Senate's attention to the section of the bill relating to intention and recklessness. The committee joins submitters from both within and outside government in welcoming these proposed new offences which will not only support Australia's compliance with its international obligations but go further in helping combat a range of financial crimes. The committee regarded the breadth of the proposed offences and the potentially serious penalties for those who commit them as appropriate in the circumstances.

The committee looked at the possibility of retrospectivity in relation to schedules 4 and 5. The Law Council had raised a concern about the potential with retrospective operation of both those schedules to permit the use and disclosure of personal information collected prior to the passage of the bill. The department, when questioned about this, did not agree with the Law Council's concern that the provisions may have retrospective effect, stating that the proposed amendment does not seek to retrospectively alter legal rights or obligations; it simply seeks to provide legislative certainty regarding the scope of existing powers under the money laundering act. The department advised that AUSTRAC already provided information about access to and disclosure of information on its website.

I might say that the committee always looks closely at possible retrospective impacts—they are something that I personally believe are anathema to any parliament. In this instance the committee was satisfied by the department's explanation that the legislative certainty and clarity for information sharing by AUSTRAC and AusCheck with other agencies would be achieved by schedules 4 and 5. The department emphasised the importance of the interagency information sharing for the work of the Australian Border Force, including in light of its counterterrorism role and the detection of increasing attempts to take undeclared currency out of Australia.

In all, the committee was of the view that the bill, because it seeks to combat a number of serious and complex criminal activities within Commonwealth jurisdiction, including organised crime, bribery and duplicitous financial conduct, trade in illicit drugs, money laundering and financing of terrorism, deserved the support of the parliament.

In concluding I emphasise that this is all part of the government's ongoing campaign against serious organised crime and the financing of terrorism. The committee did have some queries, which we raised in writing with the department, but with the assistance of the information and clarifications provided by the department and others on these questions the committee is satisfied that the bill strikes the appropriate balance within each of its legislative schemes, bearing in mind the important matters of criminal justice and national security that are at stake. For those reasons the committee recommended that the bill be passed. I urge upon the Senate a consideration and acceptance of the committee's recommendations.

Back to List