Strengthening our approach to organised crime

In contributing to this debate today on this bill, firstly I want to acknowledge in this place the outstanding work that is being done by the Minister for Justice, the member for Stirling, in dealing with the very serious issues surrounding terrorist activities in Australia. The minister is doing an outstanding job, and I think that is something that is recognised by both sides of this House.

I also want to acknowledge the outstanding work on the ground in my electorate by our local police officers. They are state based police working on the ground in our communities, keeping our people safe. I want to acknowledge the outstanding work being done at a local level by south-west police officers, particularly in relation to the number of very successful drug operations and arrests in recent months.

I know that a huge amount of work over an awfully long period of time has gone into these operations, and they have proven to have very sound results. I want to thank in this place all of the officers and others involved for their hard work and dedication to our communities. The officers in my part of the world have gone over and above to deliver these results for our community.

I am out there talking to people all of the time and I have had so much feedback on this issue. I have told the local police about the feedback I am getting. The general public really appreciate this results in their local communities. They often see what is going on. They see what is happening to their communities, particularly in relation to drugs.

They certainly value and respect the contribution that our local police officers make when they engage in this sort of activity. There have been really positive comments and reactions from people on the ground. It gives a very clear message to criminals as well. It sends a reinforcing message about the capability of our law enforcement officers, whether they are state or federal. We see them being active together at this moment on some of the issues the nation is facing. 

think all of us in this place respect the work that they do. I certainly do. I know that the people in my community respect the work of our local police in the south-west and what they are doing. It sends a very clear message to criminals and it sends a strong message to young people—people of all ages, really—who may be teetering on the edge that the local police are very on the ball and doing the job we have employed them to do.

I, like so many other members in this place, constantly see the damage drugs and organised crime do. I see the amount of damage done, be it to an individual or their broader family. Everybody is affected when one individual in a family has a major drug problem. Illicit drug sales and use then has an impact on the community.

Besides that very personal cost, there are massive health costs not just for the community but for the whole health system from treating the many conditions and illnesses that go with sustained drug use. There are physical and mental conditions relating to illicit drug use.

There are some great small businesses on the ground going out of business because they cannot compete with a business that is simply being used to launder money for organised crime. If you are small business whose job it is to make a profit out of your small business, how on earth do you do that when you are competing with a business that is simply laundering money for organised crime? Profit, of course, is not that particular business’s priority, but it certainly is for the small businesses right across Australia and in my electorate. As we know, it is frequently organised crime that sits behind those types of illicit activities and businesses. This legislation is targeted at those who sit at the top of these types of organised crime efforts. We have also seen organised crime infiltrating legitimate businesses.

In the work and presentations that I do out and about on cybersafety, the amount of information that comes back to me from people who are being affected by some form of scam or fraud is just extraordinary—and growing rapidly.

There is online and cybercrime. There are all sorts of different crimes in this space. There is ‘hacktivism’—attacks on individuals, organisations and governments. We are seeing it all, and we will see an increase.

So the minister and this government, as has been very clearly demonstrated in an ongoing way, are deeply committed to doing everything we can to keep Australians safe and our nation itself strong. This bill further strengthens our approach to organised crime. It makes amendments to the Proceeds of Crime Act to improve the Commonwealth’s unexplained wealth laws to enhance our capacity to prevent those people engaged in criminal activity from actively benefiting from those activities. It takes away that opportunity for them. The bill delivers more of the recommendations of the Parliamentary Joint Committee on Law Enforcement inquiry in 2011.

Unexplained wealth laws, as we know, were introduced in 2010 as part of a suite of reforms aimed at more effectively preventing and investigating organised crime activity and targeting the proceeds of organised crime groups. As I said, there is very strong community support for these laws and a very clear reason for them.

The Australian Crime Commission, for instance, conservatively estimates that organised crime currently costs Australia $15 billion a year. That is a conservative analysis, I would think. As I said, it does have a very profound impact on individuals, on businesses, on communities and on industry.

The laws are located in the Proceeds of Crime Act, which provides a really comprehensive scheme to trace, to investigate, to restrain and to confiscate proceeds generated from Commonwealth indictable offences, foreign indictable offences and certain offences against state and territory laws. Under Commonwealth unexplained wealth legislation, if a court is satisfied that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired, the court can compel the person to attend court and prove, on the balance of probabilities, that their wealth was not derived from one or more relevant offences.

If a person cannot demonstrate this, the court may order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth. There are three types of order which can be sought in relation to unexplained wealth: unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders. They are used for various purposes.

In July 2011, the Parliamentary Joint Committee on Law Enforcement initiated an inquiry into Commonwealth unexplained wealth laws, basically to examine the operation of the existing laws, to identify relevant issues and to determine ways in which the laws could be made more effective. The report was handed down in March 2012. It made 18 recommendations about improvements.

So the purpose of this bill is to amend the POC Act to actively strengthen the Commonwealth’s unexplained wealth regime and to actively improve the investigation and the litigation of unexplained wealth matters. It is very important to improve both the investigation and the litigation of these unexplained wealth matters.

Schedule 1 of the bill contains amendments to the POC Act to implement the Parliamentary Joint Committee on Law Enforcement’s recommendations to include a statement in the objects clause about undermining the profitability of criminal enterprise, which is important; to ensure evidence relevant to unexplained wealth proceedings can be seized under a search warrant; to streamline affidavit requirements for preliminary unexplained wealth orders; to allow the time limit for serving notice of applications for certain unexplained wealth orders to be extended by a court in appropriate circumstances; and to harmonise legal expense and legal aid provisions for unexplained wealth cases with those for other POC Act proceedings to prevent restrained assets from being used to meet legal expenses. I think that is quite a significant part of this particular bill.

The amendments will also allow charges to be created over restrained property to secure payment of an unexplained wealth order, as can occur with other types of proceeds of crime order; remove a court’s discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders once relevant criteria are satisfied; require the AFP Commissioner to provide a report to the PJCLE annually on unexplained wealth matters and litigation; and empower the committee to seek further information from federal agencies in relation to such a report.

Schedule 1 of the bill also contains amendments to the POC Act that do not relate to specific recommendations of the committee but have been identified as necessary to support the amendments that I outlined above and to address some of the inefficiencies in the act. They clarify that unexplained wealth orders may be made where a person who is subject to the order fails to appear at an unexplained wealth proceeding.

The purpose of this amendment is to ensure that persons cannot frustrate unexplained wealth proceedings by simply failing to appear when they are required to do so. The amendment will give effect to the original intent of the unexplained wealth scheme in the POC Act.

The amendments will ensure that provisions in the act that determine when restraining orders cease to have effect take account of the new provisions allowing charges to be created and registered over restrained property to secure the payment of unexplained wealth amounts and the fact that unexplained wealth restraining orders may sometimes be made after an unexplained wealth order, not only before. Consequential amendments are proposed to ensure that provisions allowing a court to order costs in certain situations where a restraining order has ceased take account of these amendments. These are very practical additions.

The amendments further streamline the making of preliminary unexplained wealth orders, remove redundant and unnecessary affidavit requirements in support of applications for preliminary unexplained wealth orders, and ensure that a copy of the affidavit relied on must be provided to the person who is subject to the order in light of the changes to the affidavit requirements.

There have been some concerns about the bill’s impact on the right to privacy and the protection of families and children. In order for an interference with the right not to be arbitrary, the interference must be for a reason consistent with the ICCPR and must be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity.

In essence, this requires that limitations serve a legitimate objective, limitations adopt a means that is rationally connected to that objective and the means adopted are not more restrictive than they need to be to achieve that objective.

The POC Act enables proceeds of crime authorities to disclose information obtained using coercive powers under the POC Act with state, territory and foreign authorities for the purpose of assisting in the prevention, the investigation and the prosecution of serious and indictable offences. As a result, provisions of the POC Act interact with the right to privacy.

The bill also amends the existing disclosure rules to clarify that disclosures can be made to a state, territory or foreign authority that has a role in identifying, locating, tracing, investigating or confiscating proceeds of crime under the law of the state, territory or foreign country, in order to assist in the identification, location, tracing, investigation or confiscation of proceeds of crime. This is all part of how we deal with those who sit in the space of organised crime.

This amendment is necessary to clarify that information can be shared with such authorities to assist in proceeds of crime proceedings or in the decision to commence such proceedings. The amendments made by this bill will ensure that the government continues to have strong laws to target the substantial profits made by serious and organised crime.