Everything you own is suspect. With, say, $100,000 in assets, you have to prove you are not guilty of crime. Police – maybe using false identities – can go fishing in your tax files and your private bank records. As you try to fight to prove your innocence, the government freezes all your assets, and you have no access to money. Welcome to Australia 2010. (Caption: Senators Hutchins, Parry and Fisher, CLA’s Lance Williamson, Senate Committee Chair Senator Crossin and CLA’s Bill Rowlings at the Melbourne hearing on 28 Aug 09.)
Opening statement by Civil Liberties Australia: to the Senate Legal and Constitutional Affairs Committee hearing, Melbourne, 28 August 2009 on the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009
We’d like to address two aspects of this legislation: Firstly, the current Bill itself, and our response to it, and secondly, where this Bill fits in the framework of anti-crime legislation.
Firstly, in relation to our submission on this Bill, we would like to stress that it:
- Overturns the presumption of innocence;
- Negates the traditional consensus against double jeopardy;
- Does away with privacy protections…and “authorizes fishing expeditions of considerable latitude” (as the Canadian Supreme Court puts it);
- Creates law which is based on suspicion, not reasonable belief (and a suspicion can exist, even when there’s a belief that a situation is unlikely);
- Overturns the role of the Australian Government Solicitor in civil cases, giving it to the DPP, which has traditionally handled only criminal cases;
- Tips the balance unnecessarily and unreasonably towards the DPP and police; and
- In terms of controlled operations, the proposed law is fraught with possible abuse and misuse, and wrongful conviction:
- It is dangerous because the state is involved in creating crime as opposed to detecting crime…and we give as an example the real and proven dangers evident in the NSW drug supply matter, where police put more drugs on the street than the criminals they were chasing;
- People should never be guilty if they would not have committed the offence but for the provocative or entrapment actions of police; and
- A man can be convicted under this legislation not on his state of mind, but on the state of mind of another person, a police officer.
Overall, as this legislation stands, this Committee and the Parliament would be entrusting the DPP and a range of federal and state agencies – bureaucrats – to not abuse power.
Will officials over-zealously pursue matters, and abuse their powers? Consider the current case before the NT Supreme Court, where the NT DPP is pursuing a man – an ordinary man, a fitter on an oil rig, not a bikie gang heavy, not a mafia crime boss – for $1.5m for growing 18 marijuana plants…under the civil provisions of ‘proceeds’ law.
Secondly, we are concerned about where this Bill fits in the framework of crime legislation federally…and in the states and territories, for that matter.
Early in 2009, there was a review process under way within the Attorney-General’s Department for amending the Proceeds of Crime Act 2002. We made a submission to that process, responding to a request letter of 11 Feb 09 with a submission on 10 March 09. Then a bikies brawl erupted at Sydney Airport and resulted in a death on 22 March.
Less than a month later, on 16-17 April, the Standing Committee of Attorneys-General met. Suddenly, this whole area of proceeds of crime and serious and organised crime legislation was a prominent SCAG issue. That April 09 SCAG meeting reported in this manner:
Noted that the Commonwealth is developing an Organised Crime Strategic Framework, with mechanisms to engage the States and Territories, for agreement by the Commonwealth Government by mid-2009.
CLA is unaware that the framework has been developed. Surely, legislation such as this should be founded on that framework and not enacted in a framework void. Surely, such a framework needs to be considered and supported by this Committee and the parliaments to ensure that all subsequent legislative proposals are consistent with an agreed framework?
In his Second Reading Speeech, the Minister said:
In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to a set of resolutions for a national response to organised crime.
This bill implements the Commonwealth’s commitment as part of the national response to enhance its legislation to combat organised crime by… (he listed a number of actions being taken). (underline added)
In other words, this Committee – and subsequently the Australian Parliament – are merely rubber-stamping legislative decisions made at a meeting of SCAG in April this year.
It appears to CLA that there are real questions here on the issue of whether the power of Parliament – including its Legal and Constitutional Affairs Committee – is being usurped by a meeting of Attorney-Generals’ and their bureaucratic advisers. The vast majority of those people do not have any responsibility to the federal electors of Australia.
It seems that SCAG is deciding the laws of Australia, not the Parliament of Australia.
We understand that there is to be a Crimes Legislation Amendment (Serious and Organised Crime) Bill No 2 2009…to pick up all the areas not covered in this Bill, which were to be addressed in the original review of the Proceeds of Crime Bill legislation.
Given the serious problems we have identified with the Bill, and the doubt about the strategy, CLA proposes this Committee does three things before making a decision on it:
- Defers consideration of this Bill until it can be considered in relation to and in conjunction with the Crimes Legislation Amendment (Serious and Organised Crime) Bill No 2 2008;
- Asks for a briefing from the Attorney-General on the promised Organised Crime Strategic Framework, and asks that the briefing be given in public, preferably in Parliament; and
- Asks for a full report on all uses of similar legislation, and the outcomes, for the past 10 years in federal, state and territory jurisdictions, before deciding on whether the current Bill is appropriate.
Lance Williamson and Bill Rowlings, Civil Liberties Australia, 28 August 2009