Confiscation and Other Matters Amendment Bill 2016

Ms PENNICUIK (Southern Metropolitan) — The Confiscation and Other Matters Amendment Bill 2016 makes amendments to several acts, mostly to the Confiscation Act 1997, the Criminal Organisations Control Act 2012 and the Surveillance Devices Act 1999. The main amendments made by the bill are made to those three acts.

Amendments made to the Confiscation Act 1997 will ensure that convicted criminals or those who have benefited from proceeds of crime and who have paid mortgages using the proceeds of crime cannot argue that houses bought with those mortgages were lawfully acquired. It also amends the definition of 'bank or credit card account' to include recently closed accounts so that information gathering powers of Victoria Police can now apply to these accounts.

The bill will also simplify the procedure for Victoria Police to seek the disposal of child pornography from a person convicted of child pornography and other serious offences and allow for the disposal of a computer or phone containing this material.

Amendments to the Confiscation Act will also allow police to seek certain orders such as freezing orders and production orders by phone, fax or email rather than, as they currently do, having to apply in person. The minister says in his second-reading speech:

The few hours saved by this can in some cases be sufficient to prevent a person from putting assets beyond the reach of police.

The amendments to the Surveillance Devices Act 1999, some of which are quite technical, include the removal of outdated references to particular departments, so that references to departments as previously named will now be replaced with the new department names following machinery-of-government changes. It does raise an issue about the naming of departments in that way in legislation such that when machinery-of-government changes occur departments are incorrectly named in a host of acts and regulations. But that is probably a discussion for another day.

The bill will also provide for the Chief Commissioner of Police to advise the minister of any information that should be excluded from an annual report under the Surveillance Devices Act before it is laid before Parliament if it could be reasonably expected to endanger the safety of a person, to prejudice an investigation or prosecution or to compromise any law enforcement activities or methodologies. That is because last year certain information had to be removed from the annual report that was deemed to have potentially endangered the lives of police.

I think the use of 'reasonable' does raise a question about the fact that the community and the Parliament, on receiving that particular report, will not know what has actually been removed — and the point of the annual report is to inform the Parliament and the people of the use of the Surveillance Devices Act. That is important because the use of surveillance devices and listening in on people are significant things to be doing, and that is why in fact the annual report is required. So I think we should be not so much concerned about but certainly aware of the possibilities that the public may not know information that they should know because of this. While I understand the reason for it, I think we should always be aware of these things.

The other main amendments over and above the technical amendments made to many acts are the amendments that are made to the Criminal Organisations Control Act 2012 to simplify, the government says, the process for police to seek a declaration that an organisation is a criminal organisation by consolidating the existing two types of declarations under section 19 of the act.

At the moment there are the two types of prohibitive declarations. If a court agrees to declare an organisation a prohibited organisation, then quite severe actions can be taken against that organisation, and if a court agrees to declare an organisation a restricted organisation, less significant actions can be taken against the organisation. Currently in order for a court to declare a prohibitive declaration the court needs to be satisfied beyond reasonable doubt that the criteria outlined in section 19(2B) of the act apply, and for a restrictive declaration the threshold is the civil threshold, which is on the balance of probabilities, and that is because less restrictive actions can be taken against the organisation. The Greens have produced amendments to oppose this part of the bill, and I am happy to have those amendments circulated.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — By way of background, when the Criminal Organisations Control Bill 2012 was introduced into the Parliament in 2012 the Greens did not support the bill at all because our argument was — and it still is — that there are already very strong provisions in the criminal law for taking action against persons who are involved in criminal activities, such as drug trafficking and other activities that organised crime is typically involved in. We had very strong laws already before the criminal organisations bill came into being.

By way of brief background, there have been similar laws introduced in other states. Many of them have come before the High Court. There have been a lot of legal challenges to them, and most of the legal bodies — such as the Law Institute of Victoria, for example — do question fundamentally the need for any of these types of activities, because really if a person or two persons are engaging in criminal activity or conspiring to commit a crime, then they can already be charged under the Crimes Act 1958 with both of those offences by the police.

It is interesting to note that since the act came into being in fact it has not been used, so no organisations have been declared either as a prohibitive declaration or a restrictive declaration. So there is actually no evidence to say that there is a need to merge the two or for the two to exist at all, which would be the Greens position. It is not that the Greens do not think that organised crime is a serious activity, but there are already enough powers that the police have and enough offences under the Crimes Act that people can be charged with by the police and brought before the courts — probably much more efficiently than going to the courts and having organisations declared as prohibitive organisations or restricted organisations. The police are probably better off just charging the individuals who they suspect or can allege have been engaging in criminal activity, and that is the view of many in the legal community as well.

The amendments that the Greens will be moving with regard to this bill are simply to retain the two types of declaration. This is not to say that we agree with the whole concept of declaring organisations, but we are concerned about — as the Attorney-General was saying — making it easier and making it simpler for the police to apply to the court for a declaration such that the court then only has to be satisfied on the balance of probabilities in any case to declare an organisation. Serious repercussions can follow the declaration, such as basically shutting down an organisation — and this can be any organisation. Of course it often says that it is aimed at bikie gangs, but there is no restriction in the bill that states it only applies to motorcycle organisations. It can apply to any organisation.

In terms of our position on this bill, it is mainly that we do not want to see the two definitions or declarations, prohibitive and restrictive declarations, rolled into one. We feel that the significant actions that can follow from an organisation being declared a prohibited organisation are so serious that the court needs to be persuaded beyond reasonable doubt that there is a case — bearing in mind, as I said, that such a declaration has so far not been made in the state of Victoria, which does really go some way to our point that they are not really needed and there are other actions the police can take with regard to those persons who may be acting solely or in concert with others to commit criminal offences.

Part 8 of the bill also makes an amendment to the Family Violence Protection Amendment Act 2014 to establish a process for interim family violence intervention orders to automatically become final orders without a further court hearing. This will commence on 1 July this year unless proclaimed earlier. The bill removes this default commencement date for the reform so that it can be commenced at any date by proclamation, and this is in line with the recommendations of the Royal Commission into Family Violence. As I said, the bill makes quite a number of other technical amendments to other acts, but these are the main amendments that the bill makes. With those comments, I look forward to the committee stage of the bill.

Committee Stage

Ms. PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 1, page 2, lines 1 to 4, omit all words and expressions on these lines.

2.     Clause 1, page 2, line 6, after “to” insert “the Criminal Organisations Control Act 2012,”.

These amendments amend the purposes clause of the bill, clause 1. They remove the amendments made by this bill to the Criminal Organisations Control Act 2012 which remove the distinction between the different types of declarations made in respect of organisations.

I agree that these two amendments are a test for the further amendments, which are really consequential to them.

Just briefly in support of the amendments, currently the act has two tests for declarations against organisations. For a court to agree to a prohibitive declaration it must be satisfied beyond reasonable doubt that the organisation is involved in a number of activities outlined in section 19(2B) of the act, and in terms of a restrictive declaration the court need only be satisfied to the civil level of proof — on the balance of probabilities.

As I said in the second-reading debate, the Greens have had concerns with the whole concept of declarations against organisations in terms of the civil rights, I suppose, implications of these types of declarations. I remind the committee that individuals can also be declared individuals under the act, and that is an even greater infringement on civil rights in our view. We have never really seen any evidence or been persuaded or convinced of the need to declare organisations or individuals.

If the police have evidence of people carrying out crimes, either on their own or in concert with other persons — whether they be persons that are members of an organisation or not — they should go ahead and charge those people with the intent to commit a crime or with the commission of a crime. We also have consorting laws, which were also strengthened only recently. So we believe there is enough legislation on the statute books to deal with organised crime — to deal with all crime — without these particular declarations.

The amendments do not seek to withdraw the declarations from the act, so they would still remain in the act as they are with the two different types of proof required. The reason we say that is that the types of control order conditions that can be put on an organisation under a prohibitive order are quite significant — such as ones preventing the organisation from operating, carrying on a business or taking on new members — as opposed to the less significant orders that can be applied under restrictive declarations, so we believe if you are going to have this regime in place, the two types of bars or thresholds that the court needs to be convinced of should remain for the different types of orders that would follow from the declaration. So after a declaration a certain type of order — a prohibitive order or a restrictive order — can be made.

That is basically the argument that we put in place of our amendments, which is basically to leave the status quo as it is in the act.

Debate interrupted here.

Ms PENNICUIK (Southern Metropolitan) — If we could possibly bring this discussion back to my amendments, I would be very happy. I have been listening to the questions asked by members of the opposition, and I think it is slightly wry that members of the opposition have actually been prosecuting arguments I made with regard to the bill and its effect on other people who may have interests in property in relation to which they have committed no crime but will still be caught up in it. So it is interesting that the coalition is prosecuting that argument when it did not seem all that interested in it back at the time the bill was introduced. Never mind that.

What I do want to talk about is the issue about restrictive and prohibitive declarations, which we were talking about before we went off on a bit of a tangent — well, not so much a tangent; we were talking about other aspects of the bill even though perhaps we probably could have stuck with the bit around the amendment. What I do want to say is that in terms of the discussion that has been had with regard to these particular issues that have been raised by members of the opposition, I just want to make the point for the benefit of the committee and the Parliament that the minister has said, and so have other members in this place, that these control orders are about bikie gangs although in fact there is nothing in the act that limits or restricts them to bikie gangs. In fact these provisions relate to any organisation, including incorporated associations — any organisation that a person may be a member of. That could be a political party. There is nothing stopping it from being a political party or a community group that has a particular view of the world that people may or may not agree with.

Also there is nothing in the act that restricts the making of declarations in relation to an organisation the purpose of which is to carry out a criminal activity. The threshold is quite low in that regard. It is that only one or two members of the organisation need to be found to be carrying out a criminal activity for the organisation as a whole to be declared. Everybody needs to remember that. We have gone down the road of saying that it is all about criminal organisations or organised crime. It is, and it may be that that is where most of the activity will be directed, but there is nothing in the act to prevent it being directed anywhere else. We should all remember that.

Just in terms of the difference between restrictive declarations and prohibitive declarations under the act, the questions I asked the minister before were in regard to why the police had not attempted to at least subject an organisation they thought was problematic to a restrictive declaration. I want to point out what that could possibly mean in terms of the act.

Under section 45(2) of the Criminal Organisations Control Act 2012, if the police had actually used the lower threshold of the civil burden of proof of the balance of probabilities, they could have applied to:

(f)    restrict the declared organisation from carrying out an activity specified in the condition in a specified way;

…

(h)   restrict, as specified in the condition, the use and possession by the declared organisation of property it owns, possesses, uses or occupies (whether that property is located in Victoria or elsewhere).

That could include, for example, the police applying for the organisation to not use its property between the hours of 5.00 p.m. and 8.00 a.m. and to not carry out certain activities. I would have thought these were quite strong things the police could have applied for.

I say that because prohibitive declarations are much stronger. They would allow for the prohibiting of an organisation to continue to operate, carry on a business or take on new members, or they could prohibit certain members from participating in the activities of the organisation et cetera. The difference between the two types of declarations, prohibitive and restrictive, is that the prohibitive declarations allow for much more draconian activities to be carried out against an organisation.

I remind the committee and members of the chamber that the Australian people rejected this sort of thing a long time ago; they rejected the outlawing of the Communist Party, for example. If the Communist Party were to re-form, there is nothing to stop this declaration being applied to it or for it to become a declared organisation if members of it are carrying out criminal activity, as outlined in section 19(2)(b) of the act. That is why the Greens did not support this whole concept at first. We do not believe that there is anything in the law as it is to prohibit or hinder the police from charging people for consorting to commit crimes or committing crimes.

Through the fortification act in particular we know that many clubhouses have already been raided and people have been arrested et cetera. I just wanted to put that on the record because there has been a lot of toing and froing and assertions of certain things happening in the last 2 hours which I think took us away from what is actually in the act and what exactly prohibitive and restrictive declarations do and what they allow the police and courts to do. Prohibitive declarations are quite draconian. That is why the Greens are moving the amendments to keep a higher burden of proof before a draconian control order could be put in place.

Committee divided on amendments:

Ayes, 5

Barber, Mr (Teller)                 Pennicuik, Ms

Dunn, Ms (Teller)                   Springle, Ms

Hartland, Ms

Noes, 34

Atkinson, Mr                          Mikakos, Ms (Teller)

Bath, Ms                                 Morris, Mr

Bourman, Mr (Teller)             Mulino, Mr

Carling-Jenkins, Dr                 O'Donohue, Mr

Crozier, Ms                             Ondarchie, Mr

Dalidakis, Mr                          Patten, Ms

Dalla-Riva, Mr                        Peulich, Mrs

Davis, Mr                                Pulford, Ms

Drum, Mr                                Purcell, Mr

Eideh, Mr                                Ramsay, Mr

Finn, Mr                                  Rich-Phillips, Mr

Fitzherbert, Ms                        Shing, Ms

Herbert, Mr                             Somyurek, Mr

Jennings, Mr                           Symes, Ms

Leane, Mr                                Tierney, Ms

Lovell, Ms                               Wooldridge, Ms

Melhem, Mr                            Young, Mr

Amendments negatived.

Clause agreed to; clauses 2 to 41 agreed to.