BILLS; Proceeds of Crime Amendment (Proceeds and Other Matters) Bill 2017; Second Reading

February 15, 2018

Mr HAYES (FowlerChief Opposition Whip) (11:07): I would like to speak in favour of the amendments and obviously to indicate that Labor will be supporting the passage of the Proceeds of Crime Amendment (Proceeds and Other Matters) Bill. We're all concerned when we find that there are loopholes that prevent its ability to achieve its end result, particularly when it comes to matters of law enforcement.

The proceeds of crime regime allows the authorities to trace, restrain and confiscate proceeds of crime against the Commonwealth law. The whole notion of this is to prevent organisations from financially benefiting from their crimes. Apart from crime causing misery and suffering within communities and the harm that it does, proceeds of crime allow criminal enterprises to reinvest those funds into other activities, which continues the suffering within communities.

Mr Deputy Speaker Georganas, as you know, prior to coming here I spent many, many years representing police in most Australian jurisdictions. As a matter of fact, I grew up in a police family. I can readily remember Dad coming back, probably on a Sunday morning, after he and a lot of his colleagues had been out—probably the forerunner to things such as the gang squads—and some of my uncles, as I always referred to them—I subsequently found out we weren't related, and they were all a lot bigger than me—were missing bits of bark and stuff. So they had probably had a very hard night. They were certainly enthused by catching criminals. They were enthusiastic when they caught them in an operation and they had the evidence for a successful prosecution and prepared their briefs. With bikies—I suppose their forerunners were bodgies and widgies, in those days; we probably wouldn't refer to them today as bikies—force was met with force. That's the way things were.

The thing I want to point out is that, in that era of policing, the driving thing was to catch crooks and lock crooks up, whereas I think the modern-day aspect of policing is to prevent and disrupt crime. There's a victim in every crime that takes place. Being able to prevent or disrupt criminal enterprise has a huge social benefit for all of us. That's why we need new tools to fight contemporary crime.

I know proceeds of crime is a relatively straightforward concept—you don't let people benefit from a criminal enterprise. The whole notion of this is to take away the business model that underpins criminal enterprise. I think the proceeds of crimes legislation is very good. It's been around for some time. I think it was introduced by the Hawke government some 30-odd years ago. I have been able to discover from my work on the parliamentary law enforcement committee and my involvement with current police colleagues, both within the country and internationally, that it is a matter of following the money. Proceeds of crime is one aspect of it. I suppose unexplained wealth is another. I'm particularly concerned to see that we tighten our provisions to ensure that, on how we approach moneys that flow from crime, we set a national agenda that is consistent among the state and territory jurisdictions as well as the Commonwealth.

In an effort to debase criminal enterprise we do need to take away the attraction of criminal enterprise, which is to make a profit. Their profit is derived from crime. As I said a little earlier, for every crime that's committed there is a victim. Therefore, there's got to be some greater emphasis put on that.

I know that there are many things. There is the sharing of intelligence that goes on among police. That's a very good thing because crime doesn't know borders—it doesn't respect the geographic borders, the electoral borders and things of that nature. They will look for areas of opportunity. They will commission their crime where there is weakness and where there are loopholes. I come back to the matter before us. A loophole exists in the current legislation in respect of the proceeds of crime.

I did see a very good example of where the weakness is. It is actually explained in the explanatory memorandum. I think it's a very good example: a car is bought from the proceeds of crime, from a fraud offence, and the car is later sold and the money is subsequently put towards a mortgage repayment on real property. I think most of us on both sides would say that they're obviously the proceeds of a crime and it doesn't matter when it occurred, they are still the proceeds of the crime. The Western Australian Supreme Court and the Queensland Court of Appeal took a different view in respect of the cases of the Commissioner of the Australian Federal Police v Huang and the Commissioner of the Australian Federal Police v Hart and others. The courts took the view that the person's interest in property is fixed at the time of the initial acquisition. In other words, quite frankly, the courts have taken the view that, once that money has been transmitted, you can't follow the money—it stops at that initial purchase. That's a bit of a green light for some of the criminals out there who might want to buy a block of units in Sydney, Melbourne or somewhere like that: they might get pinged for the offence but not for the financial aspect, the proceeds of the crime.

I've mentioned some of the work we did on the Parliamentary Joint Committee on Law Enforcement, and in this debate I'd like to refer to the exercise that took place between April and May 2009. The Australian government sent a delegation to a range of countries to look at contemporary methods of law enforcement and what police thought they needed to do in targeting criminal enterprise. In every jurisdiction that was visited—and bear in mind the jurisdictions were Canada, the United States, Italy, Austria, the United Kingdom and the Netherlands—the law enforcement strategies that were discussed all went to attacking the business model that underpinned serious and organised crime. The Italian national police's Mr Grassi summarised it well for our committee when he said that, from their perspective, members of criminal syndicates are far more prepared to spend time in prison than to have their assets lost as a result of any proceeding. I suppose we all know that in jail we have issues about communication and crime syndicates continuing to operate, but it's a real issue when people are prepared to spend time in jail for what they've invested in crime but not to relinquish their actual assets.

That's certainly the view of policing generally at the moment. I would like to quote from a submission that was made by Mark Burgess APM, Chief Executive Officer of the Australian Police Federation. I think he succinctly captures the law enforcement perspective when it comes to this bill. He said:

Criminal assets confiscation methods offer law enforcement agencies the opportunity to send a clear message to criminals: if you make money from criminal activity, we will take that money off you.

This is basically the contemporary thinking of policing—not waiting for a crime but actually going out and attacking the business model that underpins crime.

We need to have regard to the fact that there will be certain intrusions into civil liberties, and no doubt that's one of the issues that the courts have to deal with, but if we are going to protect our society we need to have that balance. I would favour the liberties of the people we represent to live harmoniously, to live in peace and to live without the fear that they may be impacted by crime. I have less regard for the civil liberty of criminals who perpetrate crime. I think we need to have a suite of legislation that gives our police and our law enforcement agencies the tools they need to attack the 'big end of town' when it comes to criminal enterprises. It's all very well to have poor coppers running around and locking up people distributing drugs on the street. Those people, to the cynics among us, are probably a dime a dozen. The Mr Bigs of crime are where we need to address our energies, and the only way to do that is to focus on the money. Again I quote Mark Burgess, from the Police Federation:

With the 'Mr Bigs' of the crime world able to distance themselves from the actual commission of crimes, or with criminals unconcerned with serving short term jail sentences, asset confiscation is an integral piece of the crime-fighting puzzle.

That certainly echoes the views I have.

We must get serious about this. We must ensure that our agencies have the tools they need to do the task that we require of them, which is to protect our communities—all this when serious and organised crime is estimated to be costing the country $36 billion a year. That's a lot of money. I have a view not so much about the proceeds of crime but unexplained wealth. The more money we can take off criminal enterprise to redirect into strategies that keep our community safe—I think that would be a pretty noble thing for us to do as law makers. As I say, I know in doing that there will be arguments about trampling aspects of civil liberties, but, again, I come down in favour of protecting the community.

As I said at the outset, I support the legislation. No doubt as courts do their work and inadvertently unravel the intent of what we as legislators intended in this legislation, there will be other remedies required. I would indicate that if we move away from the intention of what this is—to take money away from the criminals—I will certainly be up for supporting any other amendments.