David Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

The opposition supports the measures contained in the Law Enforcement Legislation Amendment (Powers) Bill 2015. The bill is the result of the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity seeking legislative changes on the basis of their practical experience in working with the existing legislative regime, particularly with post-charge examinations. This bill provides clarification around powers while keeping faith with the original intent of the ACC and the ACLEI. The bill contains safeguards that apply to hearings to ensure they do not affect the fair trial of the witness. The bill does not change the fact that every Australian enjoys the right to a fair trial and a fair hearing.

The purpose of the bill is to amend the Australian Crime Commission Act 2002 to clarify the powers of ACC examiners to conduct examinations; to similarly amend the Law Enforcement Integrity Commissioner Act 2006 to clarify the powers of the Integrity Commissioner, supported by the ACLEI, to conduct hearings; and to make consequential amendments to the Public Interest Disclosure Act 2013 to ensure that the definition of 'designated publication restriction' refers to the amended provision in the ACC Act. The bill is divided into two schedules. Schedule 1 is divided into two parts, introducing amendments to the ACC Act and the PID Act. Schedule 2 introduces amendments to the LEIC Act. As the relevant provisions of the ACC Act and the LEIC Act are similar, schedules 1 and 2 make similar amendments.

The ACC and the ACLEI conduct examinations and hearings which may involve compelling a person to answer questions, or to produce documents or things, about matters relating to an ACC special operation or special investigation into serious and organised criminal activity—or relating to an investigation into law enforcement corruption. These examinations and hearings enable the ACC and the ACLEI to obtain information that would not otherwise be available or which might only be obtained after long and complex investigations. Examination material, for example, plays an important role in assisting the ACC to develop an understanding of how serious and organised crime operates, to analyse this information with other relevant information and to disseminate to the Commonwealth, state and partner agencies as part of an intelligence product. A person cannot refuse to answer a question, or to produce a document or thing, in an examination or hearing on the basis that it might incriminate them or expose them to a penalty. However, there are limitations on the circumstances in which answers can be used in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty.

The powers of the ACC and the ACLEI to conduct examinations have been considered in a number of recent cases, which I will discuss. These include R v Seller and McCarthy(2013) 273 FLR 155; X7 v Australian Crime Commission(2013) 248 CLR 92; Lee v NSW Crime Commission(2013) 251 CLR 196; and Lee v R(2014) 88 ALJR 656. These cases have placed limits on the use of the examination powers in certain circumstances in which they have previously been utilised. The bill is intended to address these issues—to clarify the ability of the agencies to exercise their powers as before in circumstances which, the government has stated, are in accordance with the original policy intent.

I will give now a brief summary of the current operation of ACC examinations. An ACC examiner may conduct examinations as part of a special ACC operation or investigation. The examiner may conduct the proceedings as they see fit, allow legal practitioners to be present, and determine when it is appropriate for a witness to be examined or cross-examined. While proceedings must be held in private, a witness must be informed of any others who are present. The Evidence Act of 1995 does not apply to such an examination, so common law rules of evidence apply, subject to the ACC Act provisions.

The examiner may make such arrangements as are necessary to avoid prejudice to the safety of the person summoned, to protect them from intimidation or harassment. The examiner has the same protection and immunity in exercising their functions as a justice of the High Court of Australia. The examiner is exempt from serving a written reason for decisions to issue a summons under the ACC Act. Any report that sets out findings that an offence has been committed or makes a recommendation to institute a prosecution must not be made available to the public unless it is based on evidence that would be admissible in prosecution of a person for that offence.

Examiners have power to summon or compel witnesses to attend examinations and to give evidence on oath or affirmation when the board has made determination of a special operation or special investigation. A person and their lawyer, if legal professional privilege does not apply, must not—under penalty of fines and/or imprisonment—fail to attend or answer questions where it is proven that a valid summons was issued. The person may challenge the validity of the summons when it is an element of the offence or as an abuse of process. The person and their lawyer may also be held in contempt of the ACC for similar conduct towards the examiner, but the examiner must inform the person of their application, stating grounds and evidence in support, for it to be dealt with by the Federal Court or the state or territory supreme court. It is an offence to obstruct or hinder the ACC or an examiner in the performance of their functions or to disrupt an examination or threaten any person present in an examination before an examiner. Double jeopardy does apply to offences under the ACC legislation and state, territory and Commonwealth offences.

A person appearing before an ACC examiner as a witness may not refuse to answer a question or produce a document or thing on the grounds of self-incrimination—that is, the privilege is abrogated. Section 35 provides a use immunity for a person who, before answering a question or producing a document or thing, claims that it might tend to incriminate them or make them liable to a penalty. This type of immunity prevents self-incriminating information from being used directly as evidence against the person who provided it. A use immunity applies to criminal proceedings and proceedings for the imposition of a penalty other than confiscation proceedings or proceedings relating to giving false evidence. Derivative use immunity is not provided. This means that self-incriminatory material may be used to obtain other evidence that would be admissible against the person. The ability to use derivative material from an examination does not automatically compromise a fair trial.

The ACC Act does not include any special provisions relating to questioning of a person facing a current or imminent charge or proceeding. It does not exclude the ACC from questioning a person in such circumstances, nor does it explicitly allow it. As outlined separately in the committee consideration section of this digest, a parliamentary committee recommended amendments in 2005 to prevent the ACC from examining a person subject to criminal or confiscation proceedings on matters relevant to those proceedings.

The coercive powers may be considered to interfere with a person accessing a fair trial when the matter they are summonsed to is a compulsory inquisitorial process of examination instigated by the executive government. This made thus provide a real risk to the administration of justice. The prosecution does not gain an unfair advantage by the mere fact that the examination occurs or does not occur, primarily due to the power of the examiner to prevent disclosure and ensure a fair trial to the accused. In other words, there is no real risk in the administration of justice due to the safeguards on the examination, even in the face of a person facing pending criminal charges regarding their answers, when the examiner can utilise safeguards against disclosure to prosecuting authorities under section 25A of the ACC Act.

The mere dissemination of evidence to a prosecuting authority is not enough for a trial to be compromised, as it can only apply if it might prejudice a fair trial, and is not enough for a trial to be stayed. To force the accused to confess their guilt or give away information that they provide for their defence or to explain their conduct that allegedly supports the charges may, depending on the nature of the proceedings, prejudice a fair trial. Any relief would depend on the breach of where a direction should have been given and the steps taken to cure its effect.

A judicial officer could also use their discretion to exclude evidence under sections 90 and/or 138 of the Evidence Act 1995. However, recent cases regarding the use immunity of examination material have had their decisions reserved in the High Court of Australia, and this has led judges in other cases to issue temporary stays of prosecutions. Any dissemination is subject to and overridden by the examiner's non-publication directions, consistent with the decision in Australian Crime Commission v OK 2010, where a majority of the Federal Court upheld the legislation.

The examiner determines whether confidentiality applies to evidence that is given or the fact that a person is going to give evidence, and whether a non-publication direction should be given. The examiner is required to do this when a disclosure might prejudice the safety or reputation of a person, or prejudice the fair trial of a person who has been or may be charged with an offence. A court may seek that evidence directed to be confidential or not published be made available to a person charged with an offence before a federal, state or territory court, if it is desirable in the interests of justice. The 'interests of justice' have no definition, and they can encompass a wide range of factors.

When an examination is finished, the examiner must give a record of proceedings and any documents or things given to an examiner in connection with the examination to the head of the special ACC operation or investigation. These confidentiality directions apply also to disclosing the notice for summons to obtain documents. The person themselves may be prevented from disclosing the notice other than to their lawyer or a permitted person or body.

As outlined in the bill's explanatory memorandum, several recent cases could affect the ACC's use of its examination powers. In Seller and McCarthy, the New South Wales Court of Criminal Appeal found that the use of evidence derived from examination material in criminal proceedings against the examinee could in some circumstances be unfair. In X7 v the Australian Crime Commission, a three-to-two majority of the High Court found that the ACC Act did not authorise the ACC to examine a person who had been charged with an offence without the subject matter of the charge—referred to here as the post-charge examination. The majority noted that such an examination would affect the fairness of the examinee's trial and could only be authorised if there were clear words indicating parliament's intention. In Lee No. 1, a four-three majority of the High Court found that the Criminal Assets Recovery Act 1990 authorised the post-charge examination of a person. The majority distinguished the decision in X7 on the basis that the relevant examination occurred as a result of a court order. In Lee No. 2, the High Court unanimously found that the New South Wales Crime Commission's unlawful disclosure of the accused's examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial. The examination occurred before the accused was charged with an offence.

According to the explanatory memorandum, these cases have had an impact on ACC operations. Following the decision in X7, for example, the ACC has stated that it no longer examines persons already charged with an offence if the questioning could touch on related matters. The decision in X7 touches on both the motivations for the current amendments and the balancing of rights and public interest in this area of criminal law.

X7 v the Australian Crime Commission in 2013 was one of the more important of recent cases which not only affected the examination powers of the ACC and the ACLEI but clearly identified the principle of legality, which requires that a statutory intention to abrogate or restrict a fundamental freedom or principle, or to depart from the general system of law must be expressed with 'irresistible clearness'. It is based on this principle and the stated requirement for statutory intent that the bill has been brought forward. It clarifies the operation of the agency's examinations with the requested 'irresistible clearness' and makes plain the intention of the parliament.

The amendments proposed in the bill will clarify the application of the compulsory examination powers of the ACC and the ACLEI. They will provide the express words and clear intent which recent decisions have indicated would be required to permit persons who have been charged with an offence to be examined on matters relating to that offence.

The proposed amendments will also introduce measures intended to protect the processes of justice and the right to a fair trial by limiting the uses for which examination and derived material may be used. However, the amendments would unavoidably alter the process of a trial by limiting an examinee's defence options.

Despite the limitations which would be placed on an examinee's rights, the proposed amendments are stated by the government to be a proportionate response to the public policy requirement for combating serious and organised crime and law enforcement corruption. Labor supports a secure and fair Australia with law enforcement agencies that have the appropriate tools, ensuring as best we can that one does not hinder the other. On that basis I commend the bill to the House.

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