Karen McNamara (Dobell, Liberal Party) Share this | Hansard source

I rise to support the Law Enforcement Legislation Amendment (Powers) Bill 2015. This is an important piece of legislation designed to enhance and improve the ability of our law enforcement agencies to combat emerging national security and criminal threats. Importantly, this bill contains measures to clarify the questioning powers of the Australian Crime Commission and the Integrity Commissioner. This government is committed to ensuring our law enforcement agencies are equipped to combat the ongoing security threat currently facing our nation.

In the lead-up to this year's Anzac Day, when Australians commemorated the centenary of the landing at Gallipoli, counterterrorism police foiled an Islamic State inspired terrorist attack on an Anzac Day ceremony. The operation to capture the alleged offenders involved 200 police officers and was the culmination of Operation Rising. Operation Rising resulted in the execution of seven search warrants in Melbourne's south-east western metropolitan area. As stated by the Australian Federal Police, in the aftermath of this event, the Melbourne Joint Counter Terrorism Team maintains strong links with federal intelligence agencies. This plot highlights the importance of providing our law enforcement agencies with the powers they need to combat crime here in Australia.

We face an ongoing threat embedded within our communities, particularly from extremists hidden within Australian suburbia. We have seen over recent years the powers of law enforcement agencies reduced through court rulings, advancement in technologies and an increased global terrorism threat. This bill will help to ensure that the Crime Commission, Integrity Commissioner and the Australian Commission for Law Enforcement Integrity have access to necessary and appropriate powers so they can play their part in the fight against serious and organised crime, foreign fighters and law enforcement corruption. As with all our deliberations when considering national security, this bill will strengthen the checks and safeguards on examinations and hearings. This will strike an appropriate balance between providing law enforcement and integrity agencies the powers to keep our community safe and preserving the fundamental right to a fair trial.

As outlined by the Hon. Michael Keenan MP, Minister for Justice, in his second reading contribution, examinations and hearings are crucial to the operations of the Crime Commission and Integrity Commissioner and, as a result of amendments within this bill, an individual questioned in an examination or hearing will be unable to hide behind the privilege against self-incrimination. Importantly, they will be required to answer all questions put to them. This is a crucial change which will enable the Crime Commission and the Integrity Commissioner to obtain information that would not otherwise be available through the traditional policing and investigative tools. These powers are essential when combating serious and organised crime along with systemic corruption. Individuals and groups involved in these activities are often well funded and are well equipped to dodge investigative techniques. Moreover, they often employ methods to avoid detection by law enforcement agencies.

The Crime Commission, the Integrity Commissioner and the Australian Commission for Law Enforcement Integrity all use the information obtained through questioning powers for a range of important law enforcement purposes. This includes progressing investigations; the development, analysis and dissemination of intelligence to partner agencies; addressing systemic vulnerabilities in organisations; and disrupting the operations of organised criminal groups, including outlaw motorcycle gangs.

The government acknowledges that these are significant powers that override the right to silence. They are vital to law enforcement's ability to investigate, prevent and disrupt Australia's most serious criminal activity. We must remember that examinations and hearings are already subject to a number of checks and safeguards. As Minister Keenan outlined, this bill will strengthen checks and safeguards and strike an appropriate balance between giving law enforcement agencies the powers they need to keep us safe and the need to preserve the fundamental right to a fair trial.

A number of recent court cases have adversely affected the way in which our law enforcement and intelligence agencies can use their existing powers of questioning. Importantly, these decisions have had a significant negative impact on the operations of the Crime Commission and the Integrity Commissioner. For example, in response to the High Court decision of X7 v. Australian Crime Commission and Anor, the Crime Commission has ceased examining anyone who had been charged with an offence where the questioning might touch on the subject matter of the charges. The High Court's finding in X7 related to an individual who was arrested and subsequently charged with three indictable Commonwealth offences in relation to alleged conspiracies to import and traffic a commercial quantity of a controlled drug and to deal with money that was the proceeds of crime. A majority of the High Court held that the examination provisions of the Australian Crime Commission Act did not permit an examiner of the Australian Crime Commission to require a person charged with but not yet tried for an indictable Commonwealth offence to answer questions about the subject matter of the charged offence. As a result of this ruling, the Crime Commission has already been prevented from obtaining valuable intelligence about the methodologies and activities of those engaged in serious criminal activities. Alarmingly, this includes recruiters and facilitators of foreign fights and their links with other individuals.

Measures within this bill will directly address and correct the erosion of powers as a consequence of the High Court's ruling. This bill will amend the Australian Crime Commission Act 2002 and the Law Enforcement Integrity Commissioner Act 2006 to restore and strengthen the powers of the Crime Commission and Integrity Commissioner. This bill will expressly authorise the Crime Commission and Integrity Commissioner to question a person who has been charged with an offence, which was the original intention behind those acts.

In the past, this power has enabled the questioning of arrested paedophiles and child pornographers about the identities and locations of their victims. It has also allowed law enforcement agencies to obtain a detailed understanding of contemporary drug-trafficking techniques and to identify the individuals involved in those illicit activities. Furthermore, this power has been used to identify and eliminate the influence of corruption within Australia's law enforcement agencies. I would suggest that law-abiding citizens would rightfully expect our law enforcement agencies to be equipped with such powers.

This bill will also authorise the use of derivative material obtained from an examination hearing and define the circumstances in which examination hearing material and derivative material may be provided to a prosecutor. The term 'derivative material' is used in relation to examination material and is intended to be a broad definition to capture all evidence, information, documents or things that have been obtained from examination material. It includes: firstly, information obtained directly from examination material, such as an individual or object whose existence was revealed during an examination; secondly, information obtained from a combination of examination material and other material, such as a hoard of illicit drugs uncovered once evidence directly derived from examination material is considered with other relevant information; and, thirdly, information obtained indirectly from examination material, such as child pornography material uncovered from a laptop after an examinee reveals the location of a storage facility and said storage facility contains a document recording the password to the laptop. These examples demonstrate the importance of this amendment and the necessity to ensure that the Crime Commission, the Integrity Commissioner and their partnering agencies have the clear authority to take action based upon material obtained by examination hearings.

This bill delivers on the government's election commitment to implement the outstanding recommendations of the inquiry of the Parliamentary Joint Committee on Law Enforcement into unexplained wealth. This bill will clearly authorise the Crime Commission to conduct examinations in the context of ongoing confiscation proceedings under the Proceeds of Crime Act 2002 and establish when such material may be used in proceedings. This bill also makes the same changes to the Integrity Commissioner's powers in order to bolster the ability of Australia's law enforcement and integrity agencies to target a criminal's illicit wealth.

As previously highlighted, the government will ensure there are a number of important safeguards to complement and support these changes. The government will ensure that any use or disclosure of examination hearing material or derivative material will not prejudice a person's safety or their right to a fair trial. This is consistent with Australia' criminal justice system.

The amendments to both the Australian Crime Commission Act and the Law Enforcement Integrity Commissioner Act will clearly set out the circumstances in which examination hearing material can and cannot be disclosed. It is worth noting that Australian Crime Commission examinations are only used to support investigations and operations into serious and organised crime in which ordinary police methods of collecting intelligence or investigating offences have been unsuccessful. These investigations and operations cover a range of extremely serious criminal activity, including terrorism, drug trafficking, child sex offences, cybercrime, superannuation fraud and other financial crime. It is well established that these activities cause significant harm to members of the Australian community and to Australian society and ultimately undermine our national security.

This bill will introduce an additional requirement before a person or body, such as the Crime Commission, may disclose certain types of derivative material to the prosecutor of the examinee. It will be necessary to first obtain a court order, which will only be granted if the court is satisfied that the disclosure is in the interests of justice. This provision is intended to ensure that the court controls the circumstances in which material derived from examinations can be provided to a prosecutor. These amendments will protect the right to a fair trial of a person questioned by the Crime Commission or Integrity Commissioner. Conversely, these amendments will ensure that law enforcement agencies can carry out their important role of fighting organised crime and corrupt elements within our law enforcement agencies without unfairly impacting upon the fundamental rights of the accused.

The amendments also confirm that coercive questioning powers of the Australian Crime Commission and Integrity Commissioner can only be used for the purpose of special intelligence operations or special investigations. Again, the government acknowledges that the primary purpose of an examination is not to bolster a case against the person being examined but rather to gather information for the purpose of understanding, disrupting or preventing serious and organised crime.

As I said at the start of my contribution, this government is committed to ensuring that our law enforcement agencies are equipped to combat the ongoing security threat currently facing our nation. The government acknowledge that the powers of the Crime Commission and the Integrity Commissioner are significant. However, there is no doubt that they are necessary. The challenges posed by serious and organised crime present a significant threat to our national security and the wellbeing of every Australian. The government must ensure that we can combat and disrupt serious crime. This bill achieves this by ensuring that the relevant agencies possess the questioning powers they need to protect our community. Importantly, we are reaching this outcome while upholding the fundamental principles of our criminal justice system and the right to a fair trial.

Without the amendments contained within this bill, the Crime Commission and the Integrity Commissioner would be unable to combat he real and serious threat present in our community. As Minister Keenan stated, this bill is 'vital to law enforcement's ability to understand, disrupt and prevent some of the most serious criminal activity'. I commend this bill to the House and call on all members to support these necessary provisions.

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