Page 3563 - Week 10 - Tuesday, 25 August 2009

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It is important that laws on this issue are not based on broad and sweeping generalisations. It is important that any laws dealing with serious and organised crimes punish people for what they have done, not simply who their associates are. If the crux of the offence is simply who one’s friends and associates are then this would amount to nothing more than guilt by association. As the United States Supreme Court has observed, the concept of guilt by association is a philosophy alien to the traditions of a free society. The government report discusses in some detail when offences and orders dealing with criminal association will impose proportionate limitations to the right to free association.

Another issue that comes to the fore is the right to a fair trial. The right to a fair trial is protected by sections 21 and 22 of the Human Rights Act. Although fair trials are now enshrined in legislation, the principles of a fair trial can be sourced in the long tradition of common law. As the report notes, the New South Wales and South Australian legislative regimes impose substantial limitations on the ability of those facing court proceedings to access the material which the police or the prosecution may seek to rely on as evidence. This is contrary to the principles of a fair trial as it places barriers on the principle that a fair trial properly allows the accused to raise and challenge openly contested allegations.

In saying this, however, I do not doubt the importance of maintaining the confidentiality of an informant’s identity as a safety measure. Nor do I challenge the need to keep police practices and procedures confidential during proceedings so as not to compromise ongoing and future investigations. I do, however, contend that equally important is the right of the accused to see the evidence against them so as to properly prepare and contest their case. Any legislation that limits the right to a fair trial by protecting some form of evidence needs to carefully consider the competing interests and achieve an appropriate and acceptable balance.

It is a fact that all Australian jurisdictions have laws that target organised crime. The Attorney-General has today referred to the very important Crimes (Controlled Operations) Act 2008 and the Crimes (Assumed Identities) Bill 2009. I am reassured to see that many of the measures advocated by some are already a feature of legislation in the ACT.

The ACT has the Confiscation of Criminal Assets Act 2003, which deprives offenders of all material advantage gained from crime and property used to commit crime. This act also enables the effective tracing and seizure of criminal assets and allows the territory to enforce interstate confiscation orders. I support what the Attorney-General has said about taking a thoughtful and considered approach to unexplained wealth provisions that target criminals who have profited from their criminal enterprises and who evade prosecution by successfully removing themselves from the day-to-day activities of those enterprises.

The Crimes (Sentencing) Act 2005 already authorises judiciary to impose non-association and place restriction orders upon convicted offenders.

A review of all police investigative powers for the ACT is now up and running. A steering committee of key stakeholders has been formed, which includes the

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