REMARKS AT THE FIRST INTERNATIONAL QUINTET* MEETING OF ATTORNEYS-GENERAL

Lancaster House, London

Monday, 9 November 2009

*Quintet meeting included: The United Kingdom, the United States of America, Canada, New Zealand and Australia.

The Nature and Impact of Organised Crime

Organised Crime has a significant impact on all of our countries. In Australia, it is estimated to cost the Australian economy somewhere in the vicinity of $10 to $15 billion per annum. It also generates significant social costs including through intimidation, fear and violence, illicit drug addiction, people smuggling and trafficking, sexual exploitation of women and money laundering.

Organised criminal networks are flexible, dynamic, innovative and resilient. They are motivated by profit, capable of operating across borders and constantly looking for new opportunities. Their detection is often made complex by their being intertwined with legitimate enterprises and they can dislocate the economy by seeking to control critical infrastructure such as transport, ports and airports. The mere presence of organised crime in an industry can significantly distort the operation of the legitimate market, making it difficult for decent and law abiding businesses to operate profitably.

Organised crime can also undermine trust in Government and democratic institutions as organised criminals seek to infiltrate law enforcement and public sector agencies.

This is why Prime Minister Kevin Rudd, in his inaugural National Security Statement to the Australian Parliament, elevated the fight against organised crime in Australia to a national security issue.  Today I will outline to you some of the measures we are pursuing to combat organised crime and then open a discussion on this topic to enable us to share experience and ideas.

The Public Image of Organised Crime

The public generally perceives organised crime as operating through stereotypical crime groups – be they geographic, ethnic or activity focussed. Violence earlier this year between feuding “Bikie Gangs”, including a resulting homicide, at Sydney’s Kingsford Smith Airport focussed media attention on the activities of outlaw motor cycle gangs throughout Australia. These groups can be a highly visible symbol of gang perpetrated crime.  I think it is a mistake, however, to assume that these stereotypical groups are the whole picture when it comes to organised crime.

Experts in each of our countries all point out that modern organised crime is “diverse and flexible. It pervades all parts of society and the economy, easily adapting to changing threats and new opportunities[1]. Persons engaged in organised crime are most likely to be individuals who network and collaborate to exploit a perceived opportunity. They will frequently have the very best professional advice in developing and implementing their activities. They have all but evolved beyond the reach of traditional policing. A point made by Justice Moffitt, the former President of the NSW Court of Appeal, who stated:

“Most Australians have come to realise that, despite the many inquiries, convictions, particularly of leading criminals, are few and that organised crime and corruption still flourish. The path to conviction is slow, tortuous and expensive. … The criminal justice system is not adequate to secure the conviction of many organised crime figures. …Those participating in organised crime or white-collar crime, often part of organised crime, are usually highly intelligent and often more intelligent than the police who deal with them. They have the best advice. They exploit every weakness and technicality of the law. When they plan their crimes they do so in a way that will prevent their guilt being proved in a court of law. They exploit the freedoms of the law, which most often are not known and availed of by poorer and less intelligent members of the community. Crimes are planned so there will be no evidence against those who plan and, if by accident there is, it is often suppressed by murder or intimidation”[2]

In short, organised criminals are professional, calculating and often ruthless. They essentially balance the opportunity for obtaining massive profit against the attendant risk of being caught. The challenge before governments, therefore, is to increase that risk and withdraw the profits.  And that is the strategy that we are adopting in Australia.

A Legislative Framework

Over the past year, all Australian governments have agreed to a range of legislative measures to provide a comprehensive national response to organised crime.

In developing legislation, we drew from legislative models from around the world, including:

We have also examined legislation from Italy, Ireland and the Netherlands.

Australia’s Serious and Organised Crime Legislation

At the Commonwealth level, the Rudd Government has introduced the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 and the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009.

Both Bills are presently before Parliament and we hope with the goodwill of the Opposition they will be passed before the end of the year.

These Bills seek to:

Enhanced Criminal Intelligence and Association Offences

To develop a greater focus on prevention, the legislation proposes new offences that would target persons involved in organised crime - criminalising associating with persons involved in organised criminal activity, as well as those who support, commit crimes for or direct the activities of a criminal organisation. Criminal intelligence will be enhanced by facilitating greater access to telecommunications interception for the investigation of those offences.

The legislation also proposes allowing the Australian Crime Commission (ACC), our national criminal intelligence agency, to apply to a Court to have an uncooperative witness dealt with by the Court for contempt.  This will allow the ACC to deal promptly with an uncooperative witness and avoid the delays which are part of the prosecution process - a process that could take up to 2 years to finalise, potentially stymieing investigations.

Enhanced Police Powers

The proposed legislation is also intended to harmonise and enhance the operation of Commonwealth and State and Territory schemes dealing with controlled operations, assumed identities and protection of witness identity.

The Standing Committee of Attorneys-General, a Ministerial Council involving all Australian Commonwealth, State and Territory Attorneys, has resolved a ‘national response’ to organised crime. Each jurisdiction has undertaken to introduce legislation to enable authorisations issued under a regime in one jurisdiction to be recognised in other jurisdictions.

In addition, the legislation will strengthen police capabilities by:

All of these measures will assist police and give greater protection to those who are prepared to give evidence against those involved in organised crime.

Increased Penalties

The proposed legislation also introduces joint commission offences that have the potential to significantly increase penalties for engaging in organised criminal activity. The amendments will enable the prosecutor to obtain higher penalties by aggregating the conduct of those who participate in the organised criminal activity to charge more serious offences.

Essentially the concept of joint liability will be introduced whereby each person will be liable for offences arising out of their own conduct and also those additional offences arising out of the conduct of other offenders participating in the joint criminal enterprise.

There are also increased penalties for bribery and they will have extraterritorial application.

Removing the Rewards

In addition, a particular focus of the legislation is to remove the financial incentive to engage in organised criminal activity by targeting the profits of crime.

Australia already had comprehensive legislation in place to confiscate wealth that is proven to be the proceeds of crime, both following a criminal conviction and without conviction upon proof to the civil standard. However, these regimes are less useful as senior organised crime figures use more sophisticated methods to distance themselves from the commission of offences.

Taxation laws are available in such cases to recover unpaid taxes. These laws provide for assessment based on an increase in wealth over time that has not been declared (referred to as an ‘asset betterment’).  However, taxation laws can seldom target the entirety of illegal wealth.

The proposed legislation therefore contains unexplained wealth provisions to enable law enforcement to target people who derive profit from crime and whose wealth exceeds the value of their lawful earnings.

The provisions allow a court, once satisfied that a police officer has reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired, to compel the person to attend court and prove, on the balance of probabilities, that their wealth was not derived from offences with a connection to Commonwealth power.

If a person cannot demonstrate this, it will be open to the court to order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth.

Organised Crime Strategic Framework

In dealing with organised crime, we recognise the importance of a whole of government framework that emphasises collaboration and cooperation at all levels.

This is why the Government has been developing an Organised Crime Strategic Framework, which is soon to be announced.

The Framework will aim to achieve a whole of government approach to combating organised crime by drawing together combined criminal intelligence and law enforcement capacity and prioritising operation target areas and groups.

More information on this Framework will be made available in due course.

International Cooperation

Organised crime does not recognise borders. The globalisation of financial systems and advances in communications and technology has made it easier for criminal networks to conduct their activities across multiple jurisdictions, and to seek safe haven for the perpetrator and the proceeds of their crime.

With organised criminal groups active at local, national and international levels, it is increasingly likely that investigations will have an international context. International cooperation is therefore vital in disabling criminal activities and networks, and ensuring ‘safe havens do not exist.

As I previously mentioned, Australia has developed its response to organised crime largely from what it has learned overseas.  We are always open to learning new ideas and considering other measures.

We should also consider areas where policy and regulation could be better coordinated, in addition to law enforcement and operational areas.

Thank you and I look forward to a discussion now on this topic.

[1] Cited in the Australian Crime Commission Report, “Organised Crime in Australia” p4, last accessed, 9 November 2009, http://www.crimecommission.gov.au/publications/oca/_files/2008/2008_oca_introduction.pdf

[2] Cited in the Report of the Parliamentary Joint Committee on the Australian Crime Commission, “Inquiry into the legislative arrangements to outlaw serious and organised crime groups” p158, last accessed 9 November 2009, http://www.aph.gov.au/senate/Committee/acc_ctte/laoscg/report/report.pdf