Second Reading Speech
Mr Keenan (Minister for Justice and Minister Assisting the Prime Minister on Counter-Terrorism)I move:
That this bill be now read a second time.
I am pleased to introduce the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015, which contains a range of measures to improve and clarify Commonwealth criminal justice arrangements. Non-conviction based confiscation scheme
Schedule 1 of the bill contains amendments to the Proceeds of Crime Act to clarify the operation of that act's non-conviction based confiscation scheme in light of recent court decisions.
The amendments clarify the principles a court should consider in granting a stay of confiscation proceedings where there are related criminal matters, and outlines the grounds on which a stay is not to be granted.
Whilst a court may still exercise its discretion to stay civil proceedings if it considers that it is in the interests of justice to do so, the amendments make it clear that it is not enough for a person to say that they, or someone else, may face charges or have to give evidence in a related criminal trial at a future date. There must be something more than that-the risk of prejudice must be explained to a court.
This bill recognises that the right to a fair trial is of paramount importance in the criminal justice system. Hence the amendments clarify the civil court procedures available in Proceeds of Crime Act proceedings to reduce the risk of prejudice to an accused in related concurrent or subsequent criminal proceedings.
The amendments also strengthen protections against disclosure and use of material related to the confiscation proceedings in subsequent criminal proceedings.
Where a person is facing both proceeds of crime and criminal proceedings, the amendments reinforce the safeguards against the risk of prejudice. The amendments clarify that where a court makes an order prohibiting the disclosure of information to an authority, the information cannot be disclosed.
In addition, the bill introduces a new provision to allow a court to order that proceedings under the act be heard, in whole or in part, in closed court if necessary to prevent interference with the administration of criminal justice.
These measures enable the court to safeguard against the risk of prejudice to an accused in any related criminal proceedings where the court considers it necessary to do so.
The bill also clarifies that any application for an exclusion order relating to a restraining order must be heard by a court and finalised prior to the hearing of a forfeiture application.
False dealing with accounting documents
Schedule 2 of the bill amends the Criminal Code to create two new offences of false dealing with accounting documents.
This measure will strengthen Australia's compliance with the OECD anti-bribery convention. Article 8 of the convention requires parties to create offences of false accounting for the purposes of foreign bribery. In 2012 the OECD working group on bribery recommended that Australia increase the maximum sanctions against legal persons for false accounting under Commonwealth legislation.
The offences will criminalise conduct where a person:
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- makes, alters, destroys or conceals an accounting document, or fails to make an accounting document that the person is under a duty to make, and
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- either intends or is reckless to the fact that this conduct would facilitate, conceal or disguise the offender or another person receiving or giving a benefit, or another person incurring a loss, where that benefit or loss is not legitimately due.
The offences will apply both within Australia and overseas where constitutional power permits. Serious drug offences
The amendments in schedule 3 will make amendments to improve the clarity and efficacy of the serious drug offences. The amendments will do three things.
First, they will clarify the meaning of a number of terms in the definition of 'drug analogue' to ensure that it operates more effectively. The drug analogue clause ensures that the serious drug offences apply to substances that are structurally similar to listed controlled and border controlled drugs.
Secondly, they will clarify an ambiguity in the definition of 'drug analogue' about the circumstances in which a substance listed as a controlled drug can be a border controlled drug. Under these changes, a substance may be a drug analogue of a listed controlled drug, even if the substance is already listed as a border controlled drug (and vice versa).
Finally, the amendments in schedule 3 will clarify that a process is 'manufacturing' where it converts a substance from one form into another. This will ensure that manufacturing processes which change the state or physical form of a substance, but which do not create a new substance, are caught within the various manufacturing offences in division 305 and other associated offences.
These amendments continue to deliver on the government's commitment to tackle serious and organised crime, including serious drug offending. The amendments will make sure that the serious drug offences in the Criminal Code operate effectively and without unnecessary technicalities. They build on the recent amendments to the serious drug offences contained in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 to improve our law enforcement and prosecution agencies' ability to disrupt the supply of illicit drugs.
Stronger, clearer and more effective legal frameworks to deal with illicit drugs are an important part of reducing Australia's growing addiction to drugs like ice. These drugs are mind-eating, personality-distorting and life-ending and their supply must be stopped.
Anti-money laundering and counter-terrorism financing
Schedule 4 of the bill will make several amendments to the Anti-Money Laundering and Counter Terrorism Financing Act to remove operational constraints that have been identified by a number of law enforcement agencies.
The existing definition of ' foreign law enforcement agency ' in the a ct will be amended to specifically include INTERPOL and Europol, and a new regulation-making power will be inserted to enable additional international bodies to be prescribed in future. This amendment will beneficially affect Australia's relations with foreign countries and international organisations by enabling timely and effective cooperation in the investigation of transnational and multi-jurisdictional crime.
Amendments will also be made to the secrecy and access provisions of the AML/CTF Act to clarify that information or documents obtained under section 49 of that act can be disclosed onward, including for investigative purposes such as applications for warrants. This will support the proper performance of investigative and law enforcement functions by providing greater legislative certainty.
Schedule 4 will also list the Independent Commission Against Corruption of South Australia as a designated agency under the AML/CTF Act. This will enable ICAC SA to access AUSTRAC financial intelligence information, which will enhance its capacity to investigate corruption in public administration and bring it into line with the abilities of similar statutory bodies in all other states.
AusCheck - Information sharing
Schedule 5 of the bill amends the AusCheck Act to enable AusCheck to directly share information with state and territory authorities and with a broader range of Commonwealth authorities.
Currently, AusCheck scheme personal information can only be shared with the Commonwealth and relevant Commonwealth authorities with functions relating to law enforcement or national security. This prevents AusCheck from sharing relevant information with other Commonwealth agencies that are not traditionally considered to be law enforcement agencies, but which may require access to the information for law enforcement or national security purposes.
AusCheck is also unable to directly share information with relevant state and territory agencies. These restrictions are at odds with the significant role these agencies play in law enforcement and national security, and the collaborative approach necessary to combat the cross-border threats of terrorism and serious crime. This causes particular challenges for agencies that undertake law enforcement and national security operations at secure airport and maritime port areas, such as state- and territory-led police taskforces targeting drug importation.
Information sharing will continue to be limited to the performance of functions relating to law enforcement or national security, and be subjected to strong safeguards. Safeguards include criminal offences in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme personal information, the use of privacy notices to inform applicants and acquire consent for the collection and disclosure of their personal information, memoranda of understanding with relevant authorities and the AusCheck guidelines for information sharing.
Conclusion
This bill will enhance the ability of Commonwealth agencies to investigate and prosecute criminal offences, and seeks to ensure that the Commonwealth can effectively target and confiscate proceeds of crime. It will better address law enforcement issues and national security risks through improved information sharing, and it will improve the efficiency and effectiveness of various laws relating to the administration of criminal justice.
I therefore commend the bill to the House.