Speeches

BILLS; Unexplained Wealth Legislation Amendment Bill 2018; Second Reading - 21 Aug 2018

August 21, 2018

Mr HAYES (FowlerChief Opposition Whip) (12:28): I rise to support the Unexplained Wealth Legislation Amendment Bill 2018. I have supported the notion of an unexplained wealth bill ever since the first iteration back in 2009. I think it's important that we put strong laws in place to combat serious and organised crime. We need to target the profits of crime and remove the incentive for criminals to engage in criminal enterprise. We also need to empower our law enforcement agencies to defeat the sophisticated methods used by those criminal organisations to avoid detection, often by relying on the assistance of skilled professionals. Nevertheless, those at the high point—those responsible for running criminal enterprises—are normally the ones who escape detection by ensuring that they are far removed from the actual commissioning of a crime itself. We have, on this side, always supported various tools to combat serious and organised crime, such as covert investigative tools like controlled operations, assumed identities or telecommunication interception. What we have done, continually, is to ensure that our police, our law enforcement agencies, have the necessary tools they need to fight contemporary crime.

Back in 2009 I had the opportunity, with the parliamentary Joint Committee on Law Enforcement, to visit a number of overseas jurisdictions dealing with the issue of serious and organised crime. One thing that became very clear to us—and I suppose this is also clear to all the police officers who serve us in this country—is that serious and organised crime is motivated by greed for power and money. It has serious impacts. It threatens our economy, our national security and, for that matter, the wellbeing of Australians.

The importance of serious and organised crime has already been recognised internationally. In 1997, INTERPOL carried a resolution recommending that all member states adopt effective laws giving law-enforcement officials the power that they need to combat money laundering both domestically and internationally, including the reverse onus of proof in respect of confiscation of alleged proceeds of crime.

Back in 2009, at the United Nations Office on Drugs and Crime, in the 18th Session of the Commission on Crime Prevention and Criminal Justice, the chair of that organisation had this to say:

… in the past quarter century, the nature of crime has changed. It has become organized and transnational; it has reached macro-economic dimensions; it has turned into a global business operating in collusion with legitimate activity. It has become more than localized violence—it has turned into a widespread threat to the security of cities, states, even entire regions.

The Chair of the United Nations Office on Drugs and Crime went on to say:

The UN Security Council has dealt with the issue of national security threatened by organized crime in a number of countries. Around the world organized crime has changed strategic doctrines and threat assessments. It is causing alarm among citizens, politicians and media alike.

And he summed up one aspect of the fight against crime when he said:

We face a crime wave that has become a security crisis. It must be stopped before it spreads even more fear, corruption, violence and poverty.

This is the key part. I know it threatened many that had views as to civil liberties. But the key part to his address was this:

The political will of states is mightier than the greed and fire power of criminal groups. Working together does not mean surrendering sovereignty, it means defending it. So let us enforce the rule of law where uncivil society prevails.

What the bill before us does is to simply set a national prescription for matters relating to unexplained wealth. As I said at the start, this is a concept that has certainly been around since 2009, when the then Attorney-General Robert McClelland brought legislation into this place. However, as my colleague over there, the member for La Trobe, will well recall, amendments were made by members on the other side, seeking to protect the civil liberties of individuals—in this case, the civil liberties of criminal elements—that, regrettably, had the effect of ensuring that the unexplained wealth legislation could not be relied upon. As a matter of fact, on its first review, it found that not one single case had been used by the police in respect of stripping criminals of their ill-gotten gains or their criminal assets. I commend the member for La Trobe. I know that many, including former President Senator Stephen Parry, have spoken regularly on the issue of unexplained wealth. More importantly, they have also spoken about ensuring our police have the tools they need to fight contemporary crime.

Organised crime is motivated by money. There's a financial incentive to it. Back in 2009, I think, it was estimated that the cost of organised crime was something like $15 billion, annually, to this nation alone. Making criminals account for their criminal assets or making them explain and put in jeopardy those assets that they can't prove were gained by legal means has been an effective way of disrupting and dismantling criminal enterprise. It's clear from various organisations I visited, both here and overseas, together with the member for La Trobe, that the notion of putting in jeopardy the ill-gotten gains of criminal enterprise was something law enforcement agencies thought had considerable merit.

Interestingly, when we were overseas discussing the notion of unexplained wealth, we were one of the few nations exploring it. There's always been the concept of proceeds of crime. With the actual crime that's been committed—after someone's been caught, prosecuted and convicted of a particular crime—the assets from that crime could be in jeopardy and stripped from them, but not the notion of, if they're caught and found to be a criminal, being able to put in doubt all remaining assets they hold, unless they could prove they were gained by legal means.

This was the concept of attacking the very business model that underpins organised crime itself. Certainly all agencies we visited agreed that unexplained wealth attacks the very heart of organised crime. But there were some caveats put on that, things that people believed were necessary. They didn't understand the concepts of Australian states having different regimes when it came to proceeds of crime. That's been one of the challenges to unexplained wealth. Regrettably, it does get back to the money and where the money goes. As my colleague the member for La Trobe would be more than well aware, when there's a reliance on a federal law, whether it's the AFP or the Crime Commission, to that extent, there's the question: which jurisdiction would receive the proceeds of the crime itself or put a claim in for the unexplained wealth that is stripped from criminal enterprise? It got to a situation where we had each state with a different regime when it came to proceeds of crime. The problem with a federal law was that it only related to a federally determined crime.

What this piece of legislation does, to put it crudely, is set a national prescription, a floor, that all our states and territories and the Australian Federal Police can rely upon in terms of making prosecutions and being able to strip assets that cannot be explained. This is something which I think is a new dimension. It's something that's brought the states closer and closer together. It's no longer a situation where each of the states is talking about what's good for their interests. For the first time the states are showing the reality of dealing with criminal enterprise. That is, criminal groups do not look to a map when they want to commit a crime. They will look to loopholes in jurisdictions where it's least likely they're going to be caught or least likely they're going to be prosecuted. Having a consistent approach is going to strengthen all our law enforcement agencies across the country. It will ensure that they are all in a position to attack the very business model that underpins crime itself—that is, making a profit. Simply, if you can strip the assets of a criminal group, it almost invites them to think about whether or not to get into this enterprise in the first place. That's because, if you're caught, not only can you lose the assets of the crime that you've actually committed but you could be called upon to explain, through a reverse onus of proof where you're responsible, how every other asset that you own was gained by legal means. If you can't explain that, it will be open to the prosecutors through the courts to strip all those assets. This is what we mean when we talk about unexplained wealth.

We met with many jurisdictions. Particularly—as the member for La Trobe will recall—the anti-Mafia police in Italy made it very clear to us that serious criminal groups would be happy to spend time in jail being incarcerated. What they weren't happy about were efforts to take away their assets—their blocks of flats, their houses, their vehicles and all those sorts of things. If you take away their assets, you actually take away more than just a person's identity; you show that these people are completely vulnerable to law-abiding citizens of their country.

Unexplained wealth is a relatively new concept. It protects the community by deliberately attacking serious and organised crime. It's designed to disrupt criminal enterprise itself. The effective notion of unexplained wealth is, as I say, to protect our community and to put criminals out of business to ensure that we can live in a safer environment. To all those police and other law enforcement officers, I have complete respect for the work that you do. You make a difference for the better in our communities. We must provide you with the tools necessary to do your job —(Time expired)

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