Tuesday, 20 September 2022

Major Crime and Community Safety Legislation Amendment Bill 2022

Second reading

Debate resumed on motion of Ms SHING:

That the bill be now read a second time.

Dr BACH (Eastern Metropolitan) (15:33): It is good to rise to make a contribution on the Major Crime and Community Safety Legislation Amendment Bill 2022, the ill-named Major Crime and Community Safety Legislation Amendment Bill 2022 because it does not deal with many major crimes. I was hopeful when I saw the title that it might deal with some significant matters that have been broached in the debate in the other place, some of which I may touch upon in my contribution as well. Instead the bill deals with some rats and mice—some small matters—and I want to make it clear at the outset that on this side of the house we do not oppose this bill, but we were disappointed. We were disappointed because there are a range of other matters that this bill and justice bills at this time could deal with that have not been dealt with over many years, and when I saw the title I was hopeful because I live in hope.

This bill will amend the Confiscation Act 1997 in relation to digital assets, search warrants and seizure warrants, exclusion applications, partial forfeiture of tainted properties, enforcement of pecuniary penalty orders against real property, information-gathering powers and examinations, restraining orders and miscellaneous matters. On a number of fronts the bill is seeking to keep up with the times and in particular to keep up with digital technologies—not something I am against. The bill also seeks to amend the Crimes Act 1958 in relation to search warrant powers under the act; the lodgement of search warrant reports with the Magistrates Court; and the retention, destruction, disclosure and use of fingerprints taken from persons under the act as well—again in an effort to carry out some cleaning up of some older legislation.

The bill also will amend the Crimes (Assumed Identities) Act 2004 in relation to the circumstances in which authorised civilians who are Victoria Police employees can be authorised to assume identities under the act and the delegation of the Chief Commissioner of Police’s powers under the act. Penultimately, the bill will amend the Drugs, Poisons and Controlled Substances Act 1981 in relation to quantities of certain drugs, forfeiture provisions under the Confiscation Act 1997 and finally will make a consequential amendment to the Sex Work Decriminalisation Act 2022.

Now, all of these various minor amendments are meritorious enough in and of themselves. The point that the Shadow Attorney-General, Mr O’Brien, made in the other place was that he was particularly keen to see some changes to the law when it comes to outlaw motorcycle gangs. I would refer members to his very interesting contribution on this point. He has raised matters regarding how inadequate our current laws are on a number of occasions. The point he made was that when he saw this bill he was hopeful that the government may have acted.

There are other priorities across the broad justice portfolio that I would have seen included in an act such as this. I have recently been meeting with an amazing group of young people, all of whom have had experiences in Victoria’s youth justice system, and they have great ideas about what more we can be doing to stop vulnerable young people from entering our youth justice system in the first place. That should be the aim, because we know that all we do when we funnel more and more vulnerable and disadvantaged young people into our youth justice system is to further criminalise them and further traumatise them, which makes the community less safe. We should be tough on crime, and the way you do that with vulnerable and disadvantaged young people is by seeking to support them as early as possible, because we know that once so many of these young people get into the youth justice system it is too late. We do so little in our youth justice system to aid real reformation.

Another thing I am regularly told by this group of young people who have lived experience in Victoria’s criminal justice system is that once in Parkville and Malmsbury so much more can be done to provide a therapeutic response. Why aren’t we doing more to provide educational services in Parkville and Malmsbury? I thought that might be in this bill. Why aren’t we doing far more to provide mental health support in Parkville and Malmsbury? Why don’t we change our policies around the arbitrary use of solitary confinement, as a number of members discussed in the previous, very odd bill relating to a UN subcommittee.

So the bill that lies on the table of the house has the support of the opposition. We have very few concerns with the bill itself. I would just reiterate the point that some other members have made that this is a missed opportunity to seek to deal with some of the quite frankly more significant issues across the justice portfolio. For what it is worth, we will support this bill.

Ms TERPSTRA (Eastern Metropolitan) (15:39): I rise to make a contribution on the Major Crime and Community Safety Legislation Amendment Bill 2022. I am pleased to say that this bill will deliver the Community Safety Statement 2018–19 commitments to strengthen Victoria’s asset confiscation scheme and improve search warrant and crime scene processes. The bill has been developed in consultation with key government and legal stakeholders. It also will improve Victoria Police’s response to serious and organised crime, will streamline, clarify and modernise fingerprint and search warrant powers and the use of assumed identities in criminal investigations and will create operational efficiencies for the police and the courts.

Specifically the bill will improve Victoria’s asset confiscation scheme by strengthening the investigation and enforcement powers, updating offences that result in the automatic forfeiture of assets and modernising the scheme to account for technological developments, for example by extending provisions to digital assets like cryptocurrency. It will also modernise Victoria Police’s search warrant powers and fingerprinting framework and amend the Crimes (Assumed Identities) Act 2004 to streamline and modernise processes for Victoria Police to authorise and use assumed identities in the online environment. Organised crime has long been using digital currencies to partake in illegal transactions and make the tracing and identifying of digital currencies and assets difficult.

The bill includes Australian-first reforms to bring digital currency exchanges within the definition of ‘financial institution’ for the purposes of confiscation powers. These exchanges hold records of cryptocurrencies and other digital assets in private wallets and provide exchange services where cryptocurrencies can be transferred to other currencies, including traditional currencies. Under the reforms, law enforcement can require exchanges to provide account information as well as monitor and freeze digital assets in the same way they already can with banks and bank accounts. The bill will go a long way to clamping down on these criminals and make it much harder for them to skirt these laws through opaque digital exchanges and anonymised accounts. These amendments also provide clear powers for digital assets to be monitored and frozen to prevent them from being dissipated by a criminal target.

This bill will also clarify and strengthen investigation and enforcement powers, including those regarding serious drug offenders, information gathering by law enforcement, restraining orders and enforcement of confiscation outcomes. The bill extends offences that trigger the automatic forfeiture of assets upon conviction to include the following: (a) the possession of a trafficable quantity of firearms, and (b) trafficking in amounts greater than 600 grams of the drug 1,4-BD, known as a surrogate for the drug known as GHB.

Therefore the bill before us today allows law enforcement to issue multiple individual information notices to seek updated account information during ongoing litigation and also expands the circumstances in which the production of documents can be compelled. It is essential that law enforcement has the powers it needs to effectively identify and locate possible proceeds of crime. The Confiscation Act 1997 already has strong information-gathering powers, and this bill makes improvements to expand them further. For example, law enforcement will be able to demand documents in addition to its current powers to ask questions when examining suspects about their assets. These amendments will ensure our confiscation laws are fit for purpose and give police the powers they need to investigate, identify and confiscate ill-gotten gains—there is a phrase that has not been said for a while.

These amendments to the Crimes Act 1958 clarify and streamline Victoria Police’s powers for fingerprinting and search warrants, enabling better use of police time. The bill empowers Victoria Police officers to personally take copies of electronic data from computers and storage devices. It will also empower Victoria Police when executing a warrant under the Crimes Act to: seek assistance from persons with specialised skill or technical knowledge—for example, locksmiths or forensic accountants—without those assistants being named in advance in the warrant; secure electronic equipment for operations by experts; take a copy of data stored on a computer or data storage device; and break open a safe or other storage receptacle or transport it to a different location to search it safely.

Additional safeguards will be included in this bill with respect to the expanded search warrant powers. Police will be required to lodge a detailed report with the court following the execution of a warrant, and people with an interest in the warrant can then inspect the report. In addition, the Magistrates Court will be able to require a police officer to give evidence on the matters in the report and also to direct that a seized item be returned to its owner, consistent with existing law. The bill ensures this power will only be exercised where the expert skills are necessary to execute the search warrant. Provisions are included to clarify that, where reasonably necessary, Victoria Police may break open a safe or other storage receptacle on warrant premises or transport it to another location to be searched safely.

The bill modernises the processes for Victoria Police to authorise specially trained public service employees to operate assumed identities under the Crimes (Assumed Identities) Act 2004. The amendments extend to the duration of assumed identities for Victoria Police public servant employees from three months to 12 months and, where an assumed identity application for a Victoria Police public servant employee is being considered, will remove the requirement that it is impossible or impractical for a law enforcement officer to acquire or use the assumed identity. In this day and age, undercover work is predominantly done through online profiles, and the vast majority of current assumed identities are dedicated to this task. These tasks are best undertaken by highly trained employees of Victoria Police and not necessarily sworn officers. This will allow for a more efficient use of resources and allow investigators to more easily undertake this work.

Contrary to what Dr Bach’s contribution was about, that this bill really is about the rats and mice of things and fiddling around the edges, as you can see, substantial work is being done to streamline and make it easier for Victoria Police to do the work that they need to do in catching organised criminals but also to continue to do their important work to ensure they get the evidence they need to ensure they get the convictions that they are working on. With that, I will conclude my contribution there, and I will commend this bill to the house.

Incorporated pursuant to order of Council of 7 September 2021:

I rise to make a short contribution to the Major Crime and Community Safety Legislation Amendment Bill 2022.

It is typically an omnibus bill, and I will not canvass all the matters it addresses but do want to express my concern in regard to some very troubling aspects.

If enacted, the Major Crime and Community Safety Legislation Amendment Bill 2022 would result in a dangerous expansion of police investigative powers, including the power to compel people to provide access to personal devices.

The proposed insertion of section 80A and section 80B into the Confiscation Act 1997 would allow police to apply for a warrant which gives them the power to direct people to provide ‘any information or assistance that is reasonable and necessary’ to allow police to gain access to computers and data.

As Liberty Victoria have indicated, and I thank president Michael Stanton for his counsel, the warrant process is one of the most invasive of police powers, allowing police to enter and search property. It is a power that should be used sparingly and only where necessary, and the proposed amendments have the potential to extend this power in inappropriate and unintended ways.

Liberty Victoria is concerned about a number of elements in the proposed legislation, which undermines the right to privacy and the presumption of innocence, as am I.

These reflect the concerns raised in SARC’s review of this bill.

Most troubling in my mind is that proposed section 80C sets out that people who refuse to comply with a direction to allow access to a device can be subject to a penalty of up to five years imprisonment.

This is too severe and not reflective of the potential criminality involved in the offence. It also abrogates an individual’s fundamental right to silence, a cornerstone of the justice system.

A potential five-year jail term for a ‘no comment’ response to police questioning—for a snap decision from someone who doesn’t understand the nature or gravity of the law. Is that really what we want?

What makes this worse is that it could capture innocent third parties that could face criminal prosecution if they do not immediately provide access to devices—parties who aren’t being investigated, like children or employees.

For the above reasons I oppose the bill.

As Liberty Victoria have also articulated, the case has not been made as to why such powers—which are likely to impact on innocent people caught up in a police investigation—are necessary or proportionate limitations to human rights, particularly the rights to privacy and freedom from self-incrimination.

Motion agreed to.

Read second time.

Third reading

Ms STITT (Western Metropolitan—Minister for Workplace Safety, Minister for Early Childhood and Pre-Prep) (15:46): I move, by leave:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The ACTING PRESIDENT (Mr Melhem): Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the same without amendment.