Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

Mr Deputy Speaker Causley, may I first just endorse all the very generous comments about you that I have heard. I do not think that they will ever be made about me in the same way! I acknowledge your outstanding work for the people of Page and for the people of New South Wales, as you served in the New South Wales parliament with distinction before serving here. I have valued your friendship, counsel and advice and I hope it will still be available.

The Australian Crime Commission Amendment Bill 2007 amends the Australian Crime Commission Act 2002 (the ACC Act) to clarify that an Australian Crime Commission (ACC) examiner can record their reasons for issuing a summons or notice to produce before, at the same times as, or as soon as practicable after, the summons or notice has been issued.

The bill will also provide that summonses or notices issued after the commencement of the ACC Act, but prior to the commencement of the bill, are not invalid where reasons were recorded subsequent to their issue.

Further, the bill will provide that a summons or notice will not be invalid merely because it fails to comply with technical requirements set out in the act.

These aspects of the bill have been developed in response to findings made by Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, which was handed down on 23 August 2007. Justice Smith held that for a summons to be valid, reasons for issuing the summons must have been issued prior to the time the summons was actually issued.

While Justice Smith’s findings in Brereton are confined to the issuance of summonses, his reasoning also has implications for notices to produce issued under the ACC Act.

By clarifying that an ACC examiner may record their reasons for issuing a summons or notice to produce as soon as practicable after the summons or notice has been issued, the provisions of the bill address potential operational difficulties for the ACC presented by the decision in Brereton.

In particular, the amendments proposed by the bill will address situations where summonses or notices need to be issued in urgent situations, or where large numbers need to be issued simultaneously.

The bill will also address potential problems arising from the decision in relation to current operations/investigations, and prosecutions currently before the courts. The bill ensures that summonses and notices relied upon for current investigations/operations and prosecutions are not invalidated simply because reasons were recorded after they were issued.

Preservation of procedural safeguards

This bill preserves important procedural safeguards that ensure the integrity and fairness of examinations conducted under the ACC Act, and of convictions secured as a result of evidence obtained through those means.

The bill, in so far as it provides that a summons or notice will not be invalid merely because it fails to comply with technical requirements set out in the act, does not remove substantive procedural obligations. The bill preserves, for instance, the requirement that an examiner be satisfied that it is reasonable in all the circumstances to issue a summons or a notice to produce. Similarly, the requirement that a summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person, is preserved in the bill.

Retrospective application of provisions in the bill

I note that some provisions in the bill apply retrospectively to provide that summonses or notices to produce issued after the commencement of the ACC Act, but prior to the commencement of the bill, are not invalid where reasons were recorded subsequent to their issue.

I understand that the retrospective application of these provisions could be detrimental to persons who might otherwise have had scope to challenge the validity of a summons or notice to produce. The government considers, however, that this is a just and appropriate outcome in all of the circumstances. It does not consider that a failure to record reasons for issuing a summons or notice prior to issue of the summons or notice should give a person who would otherwise have been convicted of an offence technical grounds to challenge the admissibility of evidence and escape conviction.

Further measures

The bill also makes minor amendments that would allow for a person to appear before, or produce documents to, an examiner who is not the same examiner who issued the summons or notice.

The amendments made by the bill will enable the ACC to continue to play a key role in the investigation and prosecution of serious and organised crime in Australia. The ACC’s intelligence gathering and law enforcement powers are critical to disrupting criminal organisations and significant individuals. Therefore, the government considers it important that these issues are resolved as soon as possible so that matters before the courts are not unduly affected. I commend the bill to the Committee.

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

Mr Deputy Speaker Causley, at the outset I would add my best wishes to you in your life after parliament and also acknowledge the very extensive contribution that you have made here in the national parliament and before that in the New South Wales parliament. On a personal level, I have enjoyed the exchanges down at the horseshoe end of the House. Your experience, your wit and your forthright approach to all issues before the parliament are actually appreciated by all of us, even if we might disagree from time to time about the issues at hand. I genuinely wish you well.

The Australian Crime Commission Amendment Bill 2007 has been brought on in great haste. This is not the parliament at its best. This is not the government at its best. We as an opposition were first advised of the government’s desire to bring this matter before the parliament only on Monday night—late on Monday night, I might add. It was then rushed through the Senate the next day, and here we are on what is probably the last day of sitting of the House of Representatives before the election, facilitating its passage here in the Main Committee rather than in the House of Representatives itself.

That should not be taken as any indication that we think this is not important legislation. It is indeed important legislation. We do not take it lightly. Indeed, we have some reservations in respect of certain elements of it. It should not go unnoticed that the government’s handling of this has been poor. It has been rushed. In part, it has been inaccurate. It is yet another demonstration that for some time the government’s focus has not been on the governance of this country; it has been on internal considerations of who said what to whom over lunch some time ago, who should be leader of the Liberal Party now or who in the Liberal Party might be Leader of the Opposition after the next election.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

Mr Kerr interjecting

Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Homeland Security) Share this | Link to 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.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

It would have been nice if he had stayed.

Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Homeland Security) Share this | Link to 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.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Causley, at the beginning of my remarks might I wish you well in your retirement. If I can be blunt about it, I think that you have a reputation for being a tough old bastard in this place! I will be free in my language, given that the chance of you punting me on the last day is slight. But you also have the good wishes of those with whom you have been involved in the vigorous contest of this parliamentary environment; we know you to be a person of great goodwill as well as one with a hide as tough as a rhinoceros!

Coming to the measures in the Australian Crime Commission Amendment Bill 2007, I can only echo the remarks of the shadow minister, but I would also add some of my own sentiments in relation to these matters. The explanatory memorandum and the government’s approach to this legislation treat as mere technicalities matters which are pretty fundamental. When the former National Crime Authority was reconstituted as the Australian Crime Commission, there was substantial parliamentary attention paid to the powers that would be granted to the new body, the range of matters over which it would have authority and the extraordinary capacity for the examiners, under the new process, to exercise those powers in the way that they currently are permitted to do. One of the compromises that were reached in relation to that process was a requirement that, before an examiner can compel a person to come and provide testimony—where they have no protection against self-incrimination—they must satisfy themselves that there is a substantial basis for the issuing of the summons and, to ensure that there is a public record of the rationale for that, they must put it in writing. That latter step is not a mere technicality. It is an essential element in the safeguards that are required, not simply for record-keeping but also for the due process of the exercise of those powers. Let me as somebody who has been involved in the justice system for many decades say immediately that there is a tremendous utility in the practice of having to write down the reasons you come to a decision.

Quite frequently we have an impression, we jump to conclusions, we imagine an outcome and then, in the course of drafting an opinion or, as judges do, writing a judgement, we start going through the steps and discover that there is a significant gap, a logical omission, which means that the conclusion which might, on its face, be jumped to simply cannot be sustained and there is no proper reason. So there is a fundamental reason why in all legal proceedings in which our freedom and our economic interests are at stake we require judges to place in writing their reasons before coming to their conclusions.

It is true that the issue of a summons does not of itself expose somebody to the loss of their freedom, a fine or immediate loss of property, but the consequence of failing to attend and failing to answer questions brings with it the penalties that the shadow minister has referred to and the potentiality of imprisonment for up to five years. It is not a small matter.

It also involves a person coming before a body, usually in secret, and being exposed to rigorous examination of their personal and financial affairs—something we would not expect to be exposed to, except with good reason. It is not a licence to drag people off the streets to examine them for no proper reason. Part of the undertaking which was given when the new mechanisms were set up, when there was a transition from the National Crime Authority to the Australian Crime Commission, was to put in place these measures as a safeguard.

I regard with some real concern the reference in the explanatory memorandum that failure to comply with what are dismissively regarded or expressed as technical requirements can be ignored. It is not merely saying that you can issue a summons and then shortly thereafter set down your reasons—a matter which I think this Committee would be relatively content with, if it was explained why those circumstances arose. This bill also means that you can issue a summons without setting down your reasons at all, and failure to do that does not affect the validity of the summons. If that is done in practice then there is limited capacity for anybody to see whether there was a proper basis upon which a summons was issued. And how can you challenge what is said to be the remaining substantive safeguard when the examiner has to be satisfied it is reasonable in all the circumstances to issue the summons? How can you actually establish a failure of the substantive requirement if you do not have to comply with the obligation to set down your reasons? There is a very substantial possibility that we are opening the door to abuses and misuses of these powers. I welcome the shadow minister’s statement that those in the Australian Crime Commission should be aware that this is not intended by the parliament—certainly not by this side of the House—as facilitating that.

I have some discontent with the fact that, as the deputy chair of the Parliamentary Joint Committee on the Australian Crime Commission, which has oversight of the Australian Crime Commission, the committee was not advised that this issue was one requiring attention. It is, I think, a matter of grave concern that the Australian Crime Commission and its board failed to come before the parliamentary committee which was established by legislation to supervise the work of the Australian Crime Commission. The parliamentary committee was not advised of the fact that there was a substantive issue arising which might affect a substantial number of the inquiries and examinations conducted under the legislation. In fact, we found out about this, as the shadow minister says, by the introduction of a piece of legislation into this parliament on Monday. That is an extraordinary thing. That is an extraordinary and contemptuous way to deal with the parliamentary oversight body established under legislation.

That parliamentary committee tabled yesterday a report entitled Inquiry into the future impact of serious and organised crime on Australian society. It is a bipartisan report. It supports the work of the Australian Crime Commission. The Australian Crime Commission has an obligation to report to that committee. It has not done so. As deputy chair of the committee, I find it virtually a contempt of the obligations under the act that that organisation should not have done so. I am, frankly, angered by the fact that we are facing this circumstance without the opportunity of the body that reviews the work of the commission—looks at how it is operating, can tender advice to the department—having played a role in the remedial legislation, and we are supposed to tick off on this amending legislation, which is plainly deficient in certain regards. The minister himself must acknowledge that. It will require the review of this parliament into the next session. We do not want to open the door to the potentialities that this legislation opens up. We want to make certain that people do not evade their obligations to come before the commission when they should, before an examiner, to be examined on matters which relate to serious and organised crime. We want to close loopholes which would be matters of mere inadvertence or inattention, which any member of this House, were they an examiner, might have themselves committed. Nobody is perfect and mistakes within the organisation can be made.

What I think is inexcusable is when a circumstance arises where there is litigation, where problems become manifest, that they are not reported to the parliamentary oversight committee which has responsibilities to this parliament and there is no opportunity to share the responsibility for the construction of the legislative response with the members of parliament who have the most experience and knowledge of that work; and then we are dealt into this circumstance in the manner that has occurred at the last minute with no opportunity for constructive dialogue with government to propose amendments.

One of the obvious points that the shadow minister has raised is whether there should be an obligation, where reasons are not provided before a summons is issued, to explain those circumstances as part of the obligation to write down those reasons.

Another point is: should we have so open-ended a circumstance that failure to provide any reasons at any time is not a reason for invalidity, given that we expect, as a parliament, that that be done? Every one of us also knows that in the daily workings of our experience, where there is an obligation to provide reasons and they are not provided, it leads to questions about the motive and whether or not there were valid reasons in the first place.

Everybody knows the credibility of an account that is provided substantially after the making of a decision or the witnessing of an event is significantly less than one that is recorded contemporaneously. The High Court itself has overturned decisions by judges made some long time after the hearing of witnesses on the basis that those judgements of judicial officers themselves cannot be given the same weight after the expiry of so much time. Anybody knows that, if you are a police officer and you have a discussion with somebody or witness some event and you record it in your notebook at the time, it is likely to be taken as pretty much gospel, but if you write it down from recall three months later, people will have somewhat natural scepticism about whether you are reconstructing events to accord with what you know to be the desired outcome rather than recording what actually was your view at the time.

So I think there are pretty important matters here. There are also issues of retrospectivity, which this parliament is always concerned about. I must say that, on balance, I well understand why both the government and the opposition in this instance are prepared to accede to retrospectivity in respect of matters where the timing of the recording of reasons might have been slightly after the event. But I would hope we are not in the process, because we were not briefed and we do not know the circumstances, of also approving of a whole set of circumstances where no reasons at all were recorded. We do not know how many instances there are of examiners under this legislation, where they have a statutory obligation to set down their reasons, who have failed entirely to do that. We do not know what we are approving. We do not know the circumstances. We do not know how many cases there might be. We do not know whether we are being asked to approve something that really is in a sense innocent error or a complete disregard of the parliament’s instructions as part of an agreed package, an agreed arrangement of where we would find the balances between the rights of the citizen not ordinarily to have their liberties interfered with and the respect we have for an organisation that naturally is empowered to look at serious and organised crime.

As I started to say, one of those key balances was to say that we will permit people to be forced into a circumstance where they will be compelled to incriminate themselves, compelled to provide their financial documents or compelled to provide all kinds of personal information about their friends, their acquaintances or their relationships with other people, and to do so in secret, in an inquisitorial forum, but we will only do that if the examiner is satisfied on a proper basis and has recorded the reasons for that satisfaction.

So we are not really sure what we are approving here. We are not sure what the background to this is, and that is why I am—I suppose ‘angered’ is too strong a word—certainly extraordinarily concerned. I do not know the factual background as to what precisely we are approving. Secondly, I am extraordinarily concerned that the Australian Crime Commission has not discharged what I regard as one of its fundamental responsibilities, of saying ‘Look, we do have a problem’ in reporting to the parliamentary committee, the Joint Committee on the Australian Crime Commission of this parliament, of which Senator Ian Macdonald is the chair and I am deputy chair. Its members are not people who cannot be trusted on matters even in the greatest of confidence. There is no reason why we could not have been consulted. The failure to consult in relation to this matter, or simply even to advise, is something that I find fundamentally wrong, and I have not heard any explanation whatsoever for that failure, particularly when the committee was still proceeding with its review of and its report on serious and organised crime as late as last week. The committee was meeting regularly and discharging its obligations to the parliament in a report which was tabled in both houses yesterday.

So there are serious matters which give rise to concern. These measures will pass in this form. I think they do demand the attention of the parliament in the next sitting, whether the government is returned or the opposition becomes the government, because as they are currently framed I do not think they satisfy anybody. They provide the bandaid patch-up that appears to be required to prevent the threatened damage that we understand might happen in relation to a number of investigations, not merely the Brereton investigation. We are given to understand similar difficulties might arise in relation to a number of other matters—involving motorcycle gangs and the like—where summonses have been issued and there have been refusals to provide evidence or to fully cooperate.

Can I say as a final remark I find it particularly disturbing, when the Australian Crime Commission has come before the parliamentary committee upon which I serve as deputy chair and has advocated that it be treated with a similar kind of regard as a court would—and that is to facilitate the capacity for there to be something analogous to a contempt power—that its own statutory obligations of recording its reasons, which is another analogous provision with the court, have not been complied with. It is a series of issues that remains for later attention. Plainly, at this stage, members of the House can do no more than proceed as they are. But there will be a lot of interesting work to be done in the new parliament by the joint committee. I am certain that there are many unanswered questions that we will be seeking more information on. In my closing remarks, because I think they will be my last comments in the parliament before the forthcoming election, I wish all members the best for the election. I will not say ‘success’, because I could not extend that wish to all, but I wish all members a very relaxing Christmas that will follow.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

I fully support the remarks which have just been made by the member for Denison. The Australian Crime Commission Amendment Bill 2007 will probably be met with concern on two counts: firstly, the purpose of the bill itself, the fact that the Australian Crime Commission Act 2002 is to be amended in respect of examiners, the way they go about recording their reasons for issuing a summons before, at the same time or as soon as practicable after the event, and, secondly, the issue of retrospectivity, which I think should be seen as an anathema to all, but I do concede there are particular reasons on this occasion why it is being addressed. There is also the concept—and, Mr Deputy Speaker Barresi, you would be familiar with it—that, save for a legal technicality, it will not void proceedings. You would remember that, Mr Deputy Speaker, when you were processing awards in the Industrial Relations Commission. We are talking here about the country’s premier law enforcement agency.

As most people here know, I have spent a fair bit of my career looking after the professional industrial interests of police officers in all states and territories, including the AFP. Coupled with that, I actually grew up in a police family, so I know how police view their position on fighting crime. It is not an academic exercise for them, with the niceties of court structures. They actually believe that, when they are going out there to make arrests, they are doing it in all good conscience because they want to rid the community of the scourges inflicted by crime.

Consider a body like the ACC that seconds into it either former police officers or sworn police officers from other police jurisdictions. The sentiment is no different. I know how much strife a young constable will get into if they fail to complete procedure when they are making an arrest. It is not necessarily just their boss who will give them the rounds of the kitchen; it is their fellow colleagues, because it goes back to what these people genuinely believe is why they are in law enforcement in the first place. In respect of this organisation, just imagine this issue in the case that is live now, the Brereton case, after the matter has gone before the Magistrates Court, in November last year, and then before the Supreme Court, with a judgement coming down only recently, in August, on someone involved in a serious and organised crime—and I think this one actually came under the Wickenby investigations—and the prosecution fails simply because of the technicality that the statutorily appointed legal officer, who will be the examiner, was going to get around to signing the record of subpoena at some stage. As I raised with the shadow minister the other day, what would be the likely effect if, before he got around to signing this subpoena, he fell off his perch—if he got hit by a bus or something else and was not able to complete the exercise? Would that mean the whole investigation into a matter of serious organised crime would fall over on a legal technicality because someone did not dot the i’s or cross the t’s at the time of putting out a subpoena?

Having looked after police officers for many years I have to say that that would not suffice; it would not satisfy the station sergeant if a constable did that. Yet this seems to be the practice, and we do not know how long it has been in existence. As the shadow minister mentioned, this was dealt with back in the days of the NCA in 2002—as a matter of fact it was in the dying days of the NCA—when there was a unanimous recommendation by the then joint parliamentary committee that this matter should be corrected, that it should be clarified and put beyond doubt. Whilst, as I understand it, the minister did not at that time respond to that recommendation of the parliamentary joint committee, on establishment of the Australian Crime Commission it was nevertheless acknowledged that this matter would be taken up.

I am not sure—and unlike others here I am not a lawyer—but, in reading section 28 of the Australian Crime Commission Act, I have to say that I did think it meant that, if you were going to execute a subpoena, you would record your reasons. I just assumed that you would do that at the time. I have to say that, if those were the instructions given to a constable out there who was applying for this, I am sure the station sergeant would insist that it would be done contemporaneously.

This is of concern to me as a member of the Australian Crime Commission parliamentary oversight body, the Parliamentary Joint Committee on the Australian Crime Commission, because under section 55 the committee has a specific role. There are various obligations. It is part of the counterweight of balance because of the coercive nature of this very special law enforcement body. This body has extreme powers. Its powers are akin to a royal commission and, at the time of its being set up, the parliament in its wisdom decided, as was the case with the NCA, that there would be a measure of parliamentary oversight and that it would be done through a parliamentary joint committee.

I and the member for Denison, who is the deputy chair of that committee, had the opportunity only recently of participating in the most recent inquiry of the committee. In that inquiry various submissions were made and, interestingly, one of those submissions actually came from one of the examiners. When the examiner, Mr William Bolton, appeared before the committee he wanted to talk about an issue that seemed to be emerging in their investigations into serious and organised crime: a practice is apparently developing, particularly in relation to outlawed motorcycle gangs, whereby the witness whom they subpoena simply refuses to take the oath or affirmation and refuses to supply documentation. It was argued by the examiner that: ‘We need to have some more streamlined procedures because this is now being used as an orchestrated tactic to ensure that people cannot be forced into giving evidence at this stage. If we have to wait another 2½ to three years for a prosecution on that basis, the trail has sometimes gone cold, the investigation has moved on and all that was going to be targeted in a particular operation has simply evaporated.’

That being the case, I was one of those on the committee who thought that we needed to do something and encourage the government to look at that aspect of it. I mean not that it should be referred to as contempt but that, quite frankly, we should look at streamlining the provisions of what occurs where somebody, when they respond to a subpoena, simply refuses to answer questions. Otherwise it usurps the ability of an examiner to coerce people to answer questions and produce documentation and to then make judgement on whether or not a prosecution should take place. We were very sympathetic to that and we dealt with it. By the way, that was not the first time that this committee has dealt with that. As a matter of fact—and I will be corrected by the member for Denison if I am wrong—this is probably the second or third time. On the last occasion, we recommended to the Attorney streamlining arrangements, where the appropriate courts would deal with contempt in these matters. We consider this a body which, apart from being our premier law enforcement organisation, by definition operates in respect of serious and organised crime. Therefore, we support the coercive nature of this body. We support that, in this instance, there will not be the right to silence as there is in the normal application of courts. There will not be those things. Therefore, it is considered—and we support this—to be almost at the same level as a royal commission.

Having said that, we supported what the examiner was looking for in streamlining that which could be considered—and I will use a colloquial term; I am not sure it is necessarily a legal term—contempt of an examiner’s questioning. Yet only this week we learned that back in November, before a Magistrates Court in Victoria, there was a matter about the validity of a subpoena being issued. At no stage was that ever raised with the parliamentary oversight committee. The committee was set up under section 55 of the act to oversight the body. For all intents and purposes, the committee is the contact that the Australian Crime Commission has in its responsibilities to the Australian parliament. At no stage was that mentioned. Yet, as I said, they did want to have a discussion about contempt powers. I also refer to the report by Mark Trowell QC that will soon be coming down. I think that also deals with this. I think the report has gone to the intergovernmental committee. I understand it deals with contempt. On this issue, something that could possibly invalidate a lot of existing prosecutions and jeopardise existing investigations, there has been not one word.

One obligation of the parliamentary joint committee is to review the annual reports. We reviewed last year’s annual report this year, and I would like to take you through a couple of things that occurred in that review. We deal with the issue of the coercive powers. We deal with the position that there must be accountability and the necessary counterbalances. Apart from the PJC itself, those other counterbalance measures are the Minister for Justice and Customs, the intergovernmental committee of the Australian Crime Commission, the board of the Australian Crime Commission and the Ombudsman. You cannot say—or at least I hope we are not saying—that none of these organisations or the people in authority knew what was occurring.

It is also relevant to note that the report last year essentially indicated that coercive powers were used on 480 occasions out of 605 examinations that were conducted. In that period, 218 people were charged. There were something like 894 charges against offenders and 77 people were convicted. I do not know where all these people went, but if they are in Long Bay, I suspect there will be a hotline to defence lawyers at the moment to see about getting their clients out on the basis of a legal technicality.

This was dealt with in the transitional period of the NCA into the ACC. It was certainly spelt out on that occasion. The minister—I think it was Senator Campbell at that stage—indicated that, in setting up the ACC, recommendation 14 was accepted, although it was not prescribed in the legislation that the examiner would have to issue his reasons before or at the time of issuing a summons. If this is a practice within the ACC, a practice which was before the courts, a practice which the oversight bodies were not made aware of—including the Commonwealth Ombudsman, who, on a yearly basis, reports to the parliamentary joint committee about its investigation of this body as well—I would hate to think that we were, yesterday, at the threshold of seeing a lot of people who are either subject to investigations or prosecutions for serious and organised crime escaping on the basis of a legal technicality.

I reiterate our support for this organisation. It is the premier law enforcement body in this country. It has  significant and special powers and rightly so, but there must be not only a counterbalance in name but in substance. That includes not just paying lip-service to the parliamentary joint committee on these matters. I do not know what transpired, whether briefings were given to the government since November of last year, but, quite frankly, the last thing those 50,000 police officers involved in crime fighting want to see is our premier law enforcement body not being able to satisfactorily prosecute serious crime figures or have their investigations into serious and organised crime fall over simply because another form of independent statutory appointed legal officer decided to read down this provision in section 28, that as long as we get around to it at some stage, here or whenever, to go through the details about the reasons for issuing a subpoena, everything will be right. Everything is not right at the moment. It needs to be corrected. It is certainly not just the government in this. I do not know the extent to which the government was aware of this. I think there is sloppiness and tardiness within the ACC on this matter. Certainly from my perspective, Minister, being on the parliamentary joint committee and not being knowledgeable about this as being an issue going to the administration of the ACC in procedures, I think there is a clear break in accountability, which is the counterweight for significant and special powers exercised by this body.

In terms of the questions that the shadow minister has asked, I do not think it is unreasonable, if an examiner has not completed the reasons at the time of issuing the subpoena, to have the examiner also be responsible for why he or she has not and to require them to put that in writing as well. It is regrettable that we must treat this as retrospective legislation. There is no way around that. I know from what I have read in the papers of late that it has certainly reached some magnitude of criticism from some areas of the civil liberties movement as well as from certain defence lawyers. But realistically—I want to be quite forthright—our position must be to collectively seek to protect the Australian people from the ravages of serious and organised crime. We do not see this as a game. We do not see that this could or should fall over simply on the basis of a legal technicality. Those niceties might be great for lawyers, but those at the sharp end of looking after the community—police officers throughout this country—support strong measures to protect the community from crime.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank the honourable members who have contributed, the members for Brisbane, Denison and Werriwa. I thank the opposition for the support that has been given to this measure. The Australian Crime Commission Amendment Bill 2007 clarifies that the commission examiner can record reasons for issuing summons or notices to produce before, at the same time as or as soon as practicable after a summons or notice has been issued. The amendments also validate summonses and notices issued by examiners prior to the commencement of the bill where reasons were recorded subsequent to their issue. Further, the amendments validate summonses or notices that fail to comply with technical requirements. I note that the Minister for Justice and Customs will be writing to the Chair of the Parliamentary Joint Committee on the Australian Crime Commission to invite the committee to review these amendments after they are made.

I say to the honourable member for Werriwa that this matter came to notice in a judgement on 23 August. We are dealing with issues that have arisen in less than 30 days. In terms of the broader reporting and suggestions that there may have been some awareness of these issues before that decision, the understanding I have is that the examiners were certainly not aware of that. Two of them are former judges who have formed the view that the validity of the documentation that they were party to authorising would not be brought into challenge. It is in the context of the particular decision that this matter has been pursued. The view was that these matters were of such importance, particularly the Wickenby investigation, that to allow that prosecution or that examination to fail on what appear to be merely technical grounds—not issues of substance—would leave us all exposed and cause more abundant caution. These issues are being pursued now and I assume that is the reason that the opposition is supporting them. Obviously we are concerned that the committee should be involved in reviewing the amendments after they are made. If some deficiency is found or if there is a need identified for further amendments, the government would consider those findings.

Let me, hopefully, deal with the issues that have been raised. If they are not, I will draw them to the attention of the minister. The member for Brisbane asked the government to justify why the ACC sought to have two subpoenas for Mr Brereton struck out in that case. The first point I would like to make is that the government—and this is the course that I have taken and I expect my colleague would take—does not interfere with operational decisions in relation to bodies. I do not do it with the AFP. I do not do it with the Director of Public Prosecutions. They are independent agencies. I think it is important, and I think the Australian public would think it is important, that the government does not interfere in the operational decisions made by the ACC or its examiners. If they were being given political direction, I think that would be a matter of concern.

The ACC reports to a board. That board consists of federal, state and territory police commissioners, among others. It was established deliberately at arm’s length from day-to-day ministerial control. But the government in this case has received advice from the ACC on the handling of the particular case. The ACC considered that the reasons for the issue of the summons were not relevant to the prosecution of the non-compliance charge. However, Justice Smith rejected the ACC’s view; thus the reason for the legislation.

Criticism was raised at the haste with which this bill has been dealt with. We were not prepared to allow this issue to remain unresolved and for serious crimes potentially to be unaddressed because of what was a purely technical argument—that is, about whether reasons had been recorded before or later. It was not about the validity of the reasons or the substance of the issues that were being raised but the mere technical point about when those reasons were recorded. We considered that it was appropriate to have the matter dealt with by the parliament this week; however, we have also demonstrated an ongoing commitment to parliamentary review. The Minister for Justice and Customs has announced that he will ask the parliamentary joint committee to review the amendments after the event and, if later changes are merited, he intends to pursue them, subject to whatever other matters might intervene.

The member for Brisbane asked the government to advise whether reasons for issuing summonses were usually recorded by examiners before or after the event. I am told that the practices in relation to the issuing of summonses and notices were determined by examiners individually. However, the ACC advises that, before the Brereton decision, in over 90 per cent of the cases the reasons were recorded by examiners after the issuing of the notice or summons. This was based upon the legal assessment that sections 28 and 29 of the act allowed the urgency of issuing a summons or notice in many cases and the desire to prepare detailed and thorough reasons. However, since the Brereton decision and pending these amendments, decisions, I am told, have been recorded prior to issue.

I might say that from time to time I have been in situations where I have been asked to make decisions with a degree of urgency, particularly in matters where there is a concern that evidence might be tampered with or dealt with, where one wants to proceed as quickly as possible to ensure that it is secured and where, because of the complexity of the issues that are canvassed, after you have taken the decision you start to document your reasons. I am not saying that it should always be the case, but I can understand how in particular cases that might be so.

The only further point I would make is that past, current and future ACC examiner practices can be looked at in detail as part of the parliamentary committee inquiry and, if it forms another view, those issues can be raised. But I do make the point that there can be circumstances in which the urgency of the matter, particularly in relation to preserving evidence, can mean that you have to act very quickly.

The member for Brisbane sought from me undertakings to direct examiners, when they record reasons for issuing a summons or notice after the event, to also record reasons for that delay. I simply make the point that I do not think it is open to me, nor do I think it would be appropriate, to direct ACC examiners in how they exercise their powers. However, the ACC is conducting a detailed review of practices in this area and will be further briefing the Minister for Justice and Customs on the issues raised in that review. The idea of recording reasons for delay in recording reasons for the issuing of a subpoena, summons or notice can be considered further in that context, with due regard to the operational realities and advice that we receive.

The member for Denison expressed concern that the Brereton decision and its implications were not drawn to the attention of the parliamentary committee. I think in the comments I made earlier I raised the reasons for urgency. But, despite the complaints that have been made, I am pleased that the opposition has agreed that this bill does need expedited passage. The minister has announced that he will ask the PJCACC to look into the area of law and practice, so the committee can I think have further examination of these issues.

Criticism has been expressed about the retrospectivity of parts of this bill. The member for Denison referred to those matters raised by the Law Council and the Democrats. The government’s view—and we have been quite open about this—is that it does involve retrospectivity, and we flagged this clearly in the second reading speech in each chamber and in the explanatory memorandum. The effect of the retrospectivity is to ensure that summonses to produce documents or notices to appear issued by the ACC examiner in the past are not invalidated by a failure to record reasons before the issuing of the summons. We believe that trials for criminal offences should turn on the facts and the evidence—the issues of substance. Some of these offences involve the most significant and severe issues of law breach, and I think the community would see a failure to pursue those matters—particularly given the quantum of money that is involved—as being a real concern if it were only because of a technical reason. If a summons or notice yielding probative evidence were seen to be struck down simply because reasons were not recorded before a summons or notice were issued, but only afterwards, I think the public would see it in that light.

The amendments do leave the substantive safeguard in place; that is, a person can still challenge the validity of a summons, notice or resulting evidence if there is not, in the argument, a proper basis for the issuing of the document and adequate reasons for the issuing of it. The member for Werriwa criticised poor practices in the ACC for failing to record reasons before the issues. As I said before, two of the examiners are former judges who took the view that it was legally open and appropriate to record the reasons after the event. In the light of the findings by Justice Smith, who took a different view, the ACC is reviewing the practices in this area and has ensured that the judge’s view is complied with. I noted earlier the prospect of the PJCACC being able to look at these matters.

The amendments are to clarify that the ACC examiner may record the reasons for issuing a summons or notice to produce as soon as practicable after the summons or notice is issued. It will address potential operational difficulties for the ACC arising from the finding made by Justice Smith in the Victorian Supreme Court in ACC v Brereton that, for a summons to be valid, reasons for issuing a summons must have been issued prior to the time the summons was actually issued. Ensuring that summonses and notices issued prior to these amendments are not invalidated simply for reasons recorded after they were issued will address potential problems arising from the findings in Brereton in relation to current operations, investigations and prosecutions that are before the court. Allowing a person to appear before or to supply a requested document to an examiner who is not the same examiner who issued the summons or notice to produce will address circumstances where the examiner who issued the summons or notice is on leave, ill or otherwise unavailable.

The government does not consider that a failure to record reasons for the issuing of a summons or notice prior to the issue of the summons or notice should give a person who would otherwise have been convicted of an offence a technical ground on which to challenge the admissibility of evidence and escape responsibility for their actions. This bill will ensure the validity of evidence obtained by the ACC in carrying out its functions. It is still subject to very important procedural safeguards. By advancing this bill, the government is ensuring that the ACC is not unduly hampered in the performance of its key role in investigating and prosecuting serious and organised crime in Australia. I commend the bill to the chamber.

Question agreed to.