Steve Irons (Swan, Liberal Party) Share this | Hansard source

I too rise to speak on the Law Enforcement Legislation Amendment (Powers) Bill 2015. Before the member for Fowler leaves the chamber, I would like to acknowledge his contribution. I know about his long-term interest and commitment to law enforcement agencies in Australia and the work that he has done on committees within the parliament. I thank him for his commitment and his support for this bill as well.

Crime in any form is not something that governments of any level or our law enforcement agencies or the community can afford to be complacent about. Our government and law enforcement agencies are responsible for working together and sharing intelligence information to combat crime, which, by extension, protects each and every one of us as individuals and the community as a whole.

As members know, petty crimes take place each and every day—a stolen wallet, trespassing or shoplifting to name a few. But there are also organised crime syndicates which seek to destroy our way of life by encouraging violence, drug use, fraud and even more heinous crimes such as murder, sexual assault, child abuse and acts of terrorism. It is these types of crimes that the bill before the House aims to combat. This is a bill that every member in this place should commend for its active response to strengthen our agencies' investigative powers to ensure high-risk criminal targets are removed from our streets. As members would be aware, organised crime in Australia is estimated to cost our society $15 billion every year and was listed as one of the seven key national security risks by Australia's National Security Strategy. We cannot afford to brush this aside or ignore what it would mean to our society if we do not work now to target these serious criminals.

The Law Enforcement Legislation Amendment (Powers) Bill 2015 focuses specifically on the powers of Australian Crime Commission examiners to conduct examinations and the power of the Integrity Commissioner, who is supported by the Australian Commission for Law Enforcement Integrity, to conduct hearings. For members' reference, the ACC is Australia's national criminal intelligence agency responsible for investigating organised crime on a national level and further intelligence gathering to disrupt criminal activity. The Integrity Commissioner's role is similar in nature to that of ACC examiners, which is why the bill makes a number of changes to strengthen each of their powers in terms of intelligence gathering and investigation, while also strengthening relevant safeguards to ensure any person being examined retains their judicial and fundamental right to a fair trial.

So, while the ACC examiners focus on investigating organised crime, the Integrity Commissioner is similarly responsible for preventing, detecting and investigating corruption within our Commonwealth law enforcement agencies. I am sure members on both sides of this House would agree that the idea of corruption within our law enforcement agencies is, to say the least, something that we all want to avoid. As dire as this is we also understand that, as legislators, we must recognise the old saying that 'power corrupts, and absolute power corrupts absolutely', and ensure that appropriate mechanisms are in place to investigate alleged instances.

The aim of this bill is, therefore, not to boost ACC examiners' or the Integrity Commissioner's powers, but instead to bring their respective powers back into line with their original intent when the Australian Crime Commission Act 2002, the ACC Act, and the Law Enforcement Integrity Commissioner Act 2006, the LEIC Act, were passed in this place. This is necessary because a number of recent court cases have impeded these powers and, as a result, have reduced ACC examiners' and the Integrity's Commissioner's ability to conduct examinations and hearings. This has had operational consequences for these agencies as it has restricted their ability to use information obtained during these hearings and examinations to follow up on alleged cases of organised crime and corruption. Cases that this bill responds to, for the House's reference, include: R v Seller and McCarthy; X7 v Australian Crime Commission; Lee v New South Wales Crime Commission; and Lee v R. The recent determination in case X7 has particularly caused great concern to our law enforcement agencies and to this government as the case found that the ACC Act did not specifically authorise the examination of a person who had been charged with an offence on the subject matter of the charge. I will highlight that, although this authorisation is not specifically stated in the respective acts, it was the intent of these acts that such questioning be permitted.

As members know, as a result of this decision, both the ACC and the Integrity Commissioner have ceased conducting examinations of people after they have been charged with an offence, which has caused serious operational consequences in our law enforcement agencies overall ability to disrupt organised crime and investigate cases of corruption. This is because a person would now have to be called to a hearing or examination prior to being charged with an offence, which could potentially tip off other people involved in these criminal activities, while also providing this person with the opportunity to destroy potential evidence or hide proceeds of crime. Alternatively, the person would not be able to be questioned by the ACC or the Integrity Commissioner until charges against them had been finalised, which could potentially prevent information relating to organised crime, or even potential acts of terrorism, being thwarted by our law enforcement agencies.

For those members who are not aware, the key reason examinations and hearings by the ACC and Integrity Commission are so vital to combatting these high level crimes is that, unlike normal questioning by police in an investigation, a person cannot refuse to answer a question in an examination or hearing on the basis that the answer would incriminate them. The bill before the House, therefore, seeks to address the operational consequences of the X7 decision by specifically allowing a number of provisions. The first of these is allowing the ACC and Integrity Commissioner to summon a person who has been charged with an offence to attend an examination or hearing and for that person to be questioned about the subject matter of that charge or charges. As the Minister for Justice outlined in his speech,—and I see that he is in the chamber and congratulate him on this bill—this important power has been used in the past to question people who have been arrested on such charges as paedophilia and child pornography to investigate the identities and locations of victims.

Since the case of X7, this investigative power has, however, been frustrated as the ACC has no longer been able to examine the individual and obtain such information, which, as I stated earlier, the individual would have previously been compelled to provide. Similar frustrations have also been evident in the case of counterterrorism, which should be a concern to every member in this place and every individual outside it. Since X7, a person has been charged with criminal offences as part of an ongoing terrorism investigation but the ACC has been unable to use their examination powers to elicit further information about these activities which may have assisted in identifying terrorists and preventing an act of terrorism on our home soil or abroad. By strengthening the ACC and Integrity Commissioner's powers in this regard the government will ensure our national law enforcement agencies are able to protect our Australian communities to the best of their ability, and the investigations are able to progress rather than be stopped in their tracks once a person is charged as is currently the case.

It is, however, important to highlight to the House that there are limits on the circumstances in which an ACC examiner or the Integrity Commissioner may use these post-charge powers. For example, they can only be used for the purposes of a special operation or special investigation for the ACC, or for the purposes of investigating a law enforcement corruption issue in the case of a hearing conducted by the Integrity Commissioner. To put this more simply, an investigation can only be deemed special in those cases where normal police-gathering methods have not been effective, and these powers cannot be exercised for the purposes of bolstering a prosecution against an examinee or witness.

A second safeguard is that, before a person is summoned to attend an examination or hearing who has been charged with an offence, the examiner or Integrity Commissioner must be satisfied that issuing the summons is reasonably necessary for the purposes of that special investigation. Thirdly, and perhaps most importantly, the provisions outlined in this bill will also require that examination and hearing material must not be disclosed in a way that would prejudice the examinee or witness's fair trial. This is a very important safeguard when discussing post-charge examinations or hearings as a fundamental principle of our judicial system is the right to a fair trial.

To ensure this provision is appropriately understood and administered, two additional subsections will be added to the ACC Act and LEIC Act to, firstly, require an examiner to issue a direction preventing the disclosure of examination material if it would prejudice his or her fair trial, while the second provision will make it a criminal offence punishable by two years' imprisonment, a fine of 120 penalty units or both, to use or disclose examination material contrary to this direction. Following these new subsections, additional protections to limit the circumstances in which material can be provided to a prosecutor of the examinee or witness have also been included. Under this provision, examination or hearing material could only be provided with an order from the court hearing the charges, and this could only be disclosed if it would be in the interests of justice.

Given that ACC examinations are used in investigative cases that deal with some of our most serious criminal activities such as child sex offences, cybercrime and superannuation fraud, while hearings by the Integrity Commissioner deal with corruption in law enforcement agencies, these examiners must have the necessary powers to disrupt and prevent these serious and organised criminal offences. Similar to allowing examinations and hearings to be conducted post-charge, the bill before the House will also allow examinations and hearings to be conducted in the context of ongoing confiscation proceedings. This will specifically authorise post-confiscation application examinations to allow ACC examiners and the Integrity Commissioner to ask questions about confiscation proceedings as recommended by the Parliamentary Joint Committee on Law Enforcement's 2012 inquiry into unexplained wealth. For those members who are not aware, this government made an election commitment to implement the outstanding recommendations of the committee's report. The implementation of this provision will deliver on those recommendations.

In the case of post-confiscation application examinations, the same safeguards as I previously discussed in relation to post-charge examinations or hearings will apply. This will ensure an examinee's or a witness's right to a fair trial is not jeopardised, while ensuring the ACC and Integrity Commissioner are not forced to question the person before confiscation proceedings commence or after they are completed. This is because, similar to the reasons mentioned earlier as to why post-charge examinations and hearings are necessary, premature indication of law enforcement interest in a person could give them time to frustrate operations or to hide criminal proceeds and unexplained wealth.

New provisions in the bill before the House also outline those circumstances where hearing material can be used in criminal proceedings under the LEIC Act and when derivative material obtained in an examination or hearing can be used in criminal proceedings against the examinee or witness under both the ACC Act and the LEIC Act. In each case, immunity over answers given or documents or things produced in an examination or hearing post-charge or post-hearing will now be admissible on a limited basis. Such limited uses include documents pertaining to an examinee or witness obstructing or hindering the Integrity Commissioner in a hearing, disrupting a hearing or threatening a person at the hearing, as well as in contempt proceedings. In the case of derivative material, this will also now be able to be used in the prosecution of the examinee or witness on a limited basis. For members' reference, derivative material is 'any information, document or thing that is identified, understood or created because of, or based on, examination or hearing material'.

To ensure the impact of the derivative material is minimised in terms of a person's ability to claim the privilege against self-incrimination, it is important to note that a number of safeguards have again been outlined in the bill before the House. This includes derivative material only being disclosed to a prosecutor of the examinee or witness with an order from the court hearing the charges and by specifically preserving a court's power to make any orders necessary to ensure that the person's right to a fair trial is not prejudiced. It is necessary for derivative material to be admissible in these limited circumstances to ensure this information or documentation can be used to find additional evidence against an examinee or witness for the purposes of prosecuting them and preventing further harm to the community from their criminal actions.

In the bill before the House, new provisions relating to confiscation proceedings have also been outlined to further strengthen our national law enforcement agencies investigative powers. This will bring the use of self-incriminatory examination material obtained pre-confiscation application in line with that of the use of pre-charge or pre-hearing material. Under this provision, amendments will allow pre-confiscation application, self-incriminatory examination and hearing material to be used in evidence in confiscation proceedings. However, unlike the limited use of post-charge or post-hearing material I have outlined, material obtained post-confiscation application will not be admissible.

Overall, each of the amendments I have outlined are vital to ensuring the operational powers of the ACC Act and the LEIC Act are restored to their original intent prior to the decision in X7 and other recent court cases. This is necessary because, as a result of these cases, both ACC examiners and the Integrity Commissioner are now being forced to try to combat organised crime and corruption with one hand tied behind their back, and, when it comes to our national security and the protection of our communities, we cannot as legislators, as representatives, and as members of the public allow this to continue. To do so would breach our oath of protection as members, and it would breach the oath that every member of our law enforcements agencies have taken. It would also frustrate the work that this government and our law enforcement agencies are doing to combat organised crime, including, to name a few: fast-tracking the $74 million National Anti-Gangs Squad; investing $88 million in the Australian Customs and Border Protection Service to boost its ability to screen mail, air and sea cargo; and establishing a national ice taskforce. With this in mind, I encourage all members in this place to support this bill. I thank the members for Dobell and Batman for also speaking in support of this bill. I commend the bill to the House.

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