Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Homeland Security) Share this | Hansard source

Indeed. If the Attorney had thought it important enough to stay, I am sure that would have been appreciated by all of us, but clearly he has other pressing business.

It is alarming to Labor, and I am sure it would be to the wider community, that the government does not appear to have any understanding of how the practice of providing a record of reasons subsequent to the issuing of a summons or a notice to produce actually operates within the Australian Crime Commission. The government, and indeed those who briefed us from the department, were unable to provide any clear advice about whether this practice occurred in a majority of cases or a minority of cases, or whether it was in fact standard practice, even if it is not best practice. Most people would have the expectation that an examiner, having come to the view that a summons should be issued, would record the reasons for that in advance of the summons actually being executed. That would be the normal process—the public would expect it; I am sure many in the legal fraternity would expect that to be the case. The fact that the government has been unable to provide any advice as to whether that is the standard practice or whether the alternative of reasons being recorded after the event is standard practice is a cause of great concern. I am not quite sure what is happening in terms of oversight and management in our premier crime-fighting body, but it is quite clear that at the most senior level in the minister’s office there is no comprehension of what I think is a fundamental point at issue.

It would not be helpful to anybody for a circumstance to arise where the public believe, even if it were not true, that an agency like the ACC could go on fishing trips and, having gone on a fishing trip—that is, having decided that they would issue a summons but not writing down the reasons for doing so—execute a summons, and after that has been done to fill in the paperwork to say, ‘Now that we have found these things out, we’ll record that as the reason that we started the ball rolling in the first place.’

There is no reason why we in this parliament should think that happens but, as we all know, not just politics but also the operation of the law is about perception as well as reality. We should not place the ACC, nor should it place itself, in a position where questions like this can be legitimately raised in the mind of the public. These special powers are not provided for fishing expeditions, and the power to execute warrants of this kind by summons is not provided for fishing expeditions.

The explanatory memorandum and the briefings that we were given said that these provisions to record reasons after the execution of a summons are necessary because of pressing operational circumstances, and we on this side of the parliament accept that that can be the case. But it is not normal practice. By definition that is not normal practice: you do not have special operational circumstances every time there is a case before you. If you do, something is seriously wrong with the staffing and management of the organisation. Yet the information that has been provided to us so far would indicate that that has been the practice more often than not—that is, in more cases than not the reasons for the summons are not recorded before it is executed. That requires explanation. We have not had that explanation.

One avenue open to the Labor Party in the last two days would have been to try to somehow block the passage of this bill to force that. We are not doing that because we recognise that there are important questions of public safety involved here. The government should not use our goodwill in this matter and our desire to protect the safety of the Australian public to mask unreasonable and unacceptable practices. I do ask, and expect, that the Attorney-General will provide some advice to the parliament about that matter in his closing remarks.

We on this side of the parliament do not want to see a situation where what would be viewed as a legal technicality surrounding the recording of reasons rather than the existence of a substantive reason would of itself allow someone who might be guilty of a serious offence or who is involved in organised crime to be acquitted. But nor should we facilitate fishing expeditions. I have to say that the other side of the process is that, even if it is not a fishing expedition, because the ACC deals with high-end organised crime, these are people for whom the profits are pretty good, too. Very often these are wealthy people and, as wealthy people involved in organised crime, they have at their disposal some of the best legal minds available in the country. It strikes me, again as someone who is not a lawyer, that the practice that has been adopted lends itself to the argument that we have just seen happen in the court in Victoria. I do not think a satisfactory response to that situation is to simply try to provide some ‘blanket out’ for a practice that the community would not accept as being desirable normal practice in these matters.

I want to make it clear that the passage of this bill should not be seen as encouraging that practice, whereby reasons are routinely recorded after the issuing of a summons. That should not be the standard practice. We did approach the office of the Minister for Justice and Customs yesterday to ask whether they would be willing to agree to an amendment to the bill which would insert a requirement upon examiners, in circumstances where they are recording their reasons after the issuing, to record the reasons why it was necessary to produce those reasons in writing after the issuing of a summons rather than before it. I believe the minister’s office took a view that they did not think amendments of that kind were necessary.

Again we are in the position on the last day of parliament of not being able to pursue that with an inquiry, which we would like to have so that those matters could be more fully addressed, but I will take this opportunity to ask the Attorney-General whether he would be willing to give an undertaking on behalf of the government that, whilst it is not in the act, as a matter of practice they would require examiners to do that. It is a matter that the minister could quite reasonably instruct them to undertake: that is, in circumstances where they are unable for operational reasons to record the reasons in advance of the issuing of the summons they be required to also record why they could not do it—when they record the reasons after the event, that they also record why they had to do so after the event. That can be done administratively, and I would seek from the government their view as to whether they are willing to give a commitment to do just that.

I said at the outset that this bill has been the product of a rushed effort on the part of a government that has been distracted from the real business of governing for the people of Australia. It has caused the parliament to confront a difficult situation in dealing with some of these areas of concern. In the normal course of events we would have had the opportunity for perhaps a Senate inquiry and for some of these things to be more fully fleshed out.

We have been advised that there is concern within the Australian Crime Commission that, in the absence of this bill being given passage by the parliament, a number of important cases involving serious crimes could be jeopardised. It is not in the public interest, we think, for that jeopardy to impair those cases that are, we are told, likely to be dealt with, given that this is perhaps the last day parliament sits for some months. We are therefore willing to allow the bill to go through with our support. I do, however, look forward to the Attorney’s response.

I should make it clear that after the election, should Labor form government, we will be reviewing these provisions and we will be reviewing their implementation and operation within the Australian Crime Commission. I would suggest to those in the Australian Crime Commission that they take some note of the concerns that I as shadow minister have put on the record which after the election, should we win, we will be keen to get their advice on.

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