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

Or indeed whether or not the foreign minister might have a future in politics in the South Australian parliament.

This has been the culmination of a distraction and the fact that we are dealing with this in this way is not good practice. As you delve into some of the background to it, it also demonstrates that this is a government that is not only out of touch with the Australian people but even out of touch with its own agencies. The government would no doubt say that the fact that we were only given recent advice of this was a product of the decision made in the Supreme Court of Victoria last month. Frankly, this matter could have been dealt with much earlier than this if the government had got its act together and not been spending its time worrying about who was stabbing who in the back in the Liberal Party room.

As the Attorney mentioned, this matter deals with some significant changes to the Australian Crime Commission Act and I just wanted, by way of background, to make a couple of comments to place on the record the context of the operations of the Australian Crime Commission. The ACC is a Commonwealth statutory body that works nationally with other federal, state and territory agencies to counter serious and organised crime. It aims to bring together all arms of intelligence gathering and law enforcement to unify that fight against serious and organised crime. That is important to understand at the outset. We are not talking here about petty or minor activity. The ACC should represent the best of our policing force within the nation because it has to deal with perhaps the best organised and best resourced of our criminals. The events that led to this bill being before us indicate that that has not been the case and that government supervision of these matters has been wanting.

Because the Crime Commission has to deal with well-resourced, highly organised and quite dangerous criminal activity, it does have special provisions. The ACC operates an examiner process that is not customary in policing agencies. The examiner may summons a person to appear before them and at that examination they may be required to give evidence and to produce such documents or other things as are referred to in the summons. The examiner has power under the act to conduct an examination for the purposes of a special intelligence operation or for a special investigation. They are independent statutory officers appointed by the Governor-General. These are special people with special powers in a special organisation. We should not take these processes lightly. The purpose of the examination is to inform the examiner on matters that may relate to the subject matter of a special intelligence operation or to any relevant investigations under way.

The government have said that this bill has been presented in a rush to the parliament in response to the Supreme Court action in Victoria, ACC v the Magistrates Court of Victoria and Michael Richard Brereton. I should briefly outline the circumstances of that case. Michael Richard Brereton was called by the ACC examiner to give evidence. Mr Brereton attended but refused to be sworn or to make an affirmation to the truthfulness of that evidence. Consequently, Brereton was charged under section 30 of the ACC Act in relation to that refusal. That section provides that a failure to answer questions is an offence that brings with it a potential penalty upon conviction of a fine not exceeding 200 penalty units or imprisonment for a period not exceeding five years. It is no small matter.

Brereton’s counsel subpoenaed two lots of documents from the ACC to defend him. One related to any documents pursuant to section 28(1A) of the Australian Crime Commission Act 2002, which records or evidences that the examiner was satisfied that it was reasonable to issue an examination summons; and, secondly, any documents pursuant to section 28(1A) of the Australian Crime Commission Act 2002, which records the reasoning for the issue of the examination summons on Mr Michael Brereton.

To my surprise, I found that the ACC sought to have both of those subpoenas struck out as an abuse of process on the grounds that they served no legitimate forensic purpose and constituted a mere fishing expedition—or so said the ACC. I am glad to say I am not a lawyer but, as someone who is not a lawyer, I do find it hard to reconcile the position that the ACC took in relation to those subpoenaed documents and any fair-minded view of serving justice. I am not quite sure how justice was proposed to be served by denying those documents. The Attorney might like to explain to the parliament why the ACC took that approach.

However, in the event, the magistrate rejected the application to have the subpoena struck out and made comments along the following lines: ‘To demand that a person, say, takes an oath of affirmation in the context of this proceeding there must be first a summons properly issued in compliance with the powers pursuant to section 28 of the Australian Crime Commission Act 2002. It is legitimate for a concern to be raised in relation to the exercise of that power, particularly when there is no record within the material itself as to whether or not the examiner has put his reasons in writing.’ That is, whether the examiner has put reasons in writing and when that occurs may affect the legality of the summons and it is this decision or this reference in the decision that has led the government to introduce this bill.

There are basically two important areas in this bill. The first of those deals with allowing an examiner to execute a summons or a notice to produce documents and to have another examiner actually conduct the subsequent interviews. Labor understands that there may well be situations that arise where an examiner, having formed a view that a summons should be issued, is then for personal reasons—ill health or operational reasons—unable to deal with the subsequent interview. That, however, should not be seen as some open door for that practice to be adopted. It is clearly desirable that the examiner who forms such an opinion carry through the relevant issuing of the summons and the application of it. We do understand that it is desirable to cover that issue off in the legislation—and we will support that—but I think it is important for the ACC to understand that the parliament in agreeing with this is not assuming or even accepting that that practice should be a common one.

Secondly, and more significantly, the bill allows an examiner to record the reasons for issuing a summons or notice to produce after the summons or notice has actually been issued. The bill’s item 2 will add the following:

The record is to be made:

(a)

before the issue of the summons; or

(b)

at the same time as the issue of the summons; or

(c)

as soon as practicable after the issue of the summons.

This is a matter that has previously been the subject of some consideration in this parliament. When the Australian Crime Commission legislation was before us in 2002 the Parliamentary Joint Committee on the National Crime Authority did look at this issue and in recommendation 14 said that the bill should:

... be amended to explicitly provide that examiners must satisfy themselves in each case that before they exercise special powers under the Act that it is appropriate and reasonable to do so and that they indicate in writing the grounds for having such an opinion.

The current act could be said to reflect that. At section 28(1A) it says:

Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so.

A second sentence says:

The examiner must also record in writing the reasons for the issue of the summons.

It is that provision which lies at the heart of the matters I referred to that were being dealt with in the Victoria Supreme Court and which have prompted the government to pursue the matter here in the parliament this week.

It can be fairly said that the existing act is potentially ambiguous and there is need for clarity. The bill before the House provides that clarity. To that extent it is desirable. However, it does leave a number of issues unaddressed, and we need to take this opportunity to seek from the Attorney-General some answers. I am sure the department staff will take note of this so that the Attorney’s office can ponder it for his comments in concluding the debate.

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