Jason Wood (La Trobe, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on the Australian Crime Commission, I present the committee’s report on the inquiry into the Australian Crime Commission Amendment Act 2007, together with evidence received by the committee.

Ordered that the report be made a parliamentary paper.

I rise to table the report of the Parliamentary Joint Committee on the Australian Crime Commission on the inquiry into the Australian Crime Commission Amendment Act 2007. Before I begin on the report, I want to note the great work undertaken by the Australian Crime Commission members, particularly those seconded from the various police forces, but express my concern about the staff reductions of three per cent. I find it very hard to believe that there should be any reduction in tackling crime. I feel very sorry for the members being forced to go back to their relevant state police forces when they have ongoing investigations.

I would like to provide some background of the circumstances leading to the passing of the amendment act.  Section 30 of the Australian Crime Commission Act 2002 provides the ACC with coercive powers to conduct their investigations. Coercive powers mean that anyone summonsed to produce documents, answer questions or appear before a hearing can be compelled to do so, under the threat of legal proceedings. These powers have been very effective in the investigations into Melbourne’s underworld killings and in continuing investigations into the illicit drugs trade.

The ruling of Justice Smith in the case of ACC v Brereton 2007, handed down on 23 August 2007, placed in jeopardy 5,000 summonses and notices issued by the ACC since its establishment in 2003. Furthermore, the Commonwealth Director of Public Prosecutions advised that up to 600 summonses and 30 prosecutions could have been affected by Justice Smith’s decision, jeopardising ongoing ACC investigations including those into organised crime and outlaw motorcycle gangs.

The possible consequences of Justice Smith’s ruling necessitated the introduction of the bill to amend the Australian Crime Commission Act on 18 September 2007. Those circumstances meant that it did not go before the committee before its passage through both chambers.

As a result of its inquiry, the committee has made 10 recommendations to the government to improve the amendment act. Before I detail these recommendations, I will say that the committee raised a number of concerns with the conduct of the ACC, in particular the failure of the ACC to communicate with the parliamentary joint committee over its legislative needs.

The committee was also concerned over the methods employed by some examiners. Recommendation 1, that the ACC develop a consistent and reliable method for examiners to record their reasons for decision, as required by part II division 2, subsections 28(1A) and 29(1A) of the Australian Crime Commission Act 2002, is in direct response to the committee’s findings that examiners were not recording their reasons for the issuing of summonses as required. This recommendation recognises that there are a range of standards used by examiners in relation to the recording of reasons. Developing a standard reporting method is not merely an administrative exercise; it is a question of improving accountability.

Sections 10 and 12 of the amending act retrospectively validate any summonses or notices issued prior to the amendment act coming into effect. Recommendation 5 calls for the discontinuation of this practice and repeal of these provisions. However, in order to preserve the integrity of ongoing criminal prosecutions, the committee decided that summonses issued subsequent to the commencement of the amendment act until now should remain valid. This recognises that, should these summonses and notices become invalid, many prosecutions currently on foot would be in jeopardy, opening a virtual Pandora’s box of appeals and overturned convictions.

Finally, recommendation 6, that the Australian Crime Commission Act 2002 be amended to include a statutory definition of contempt of court, aims to address weaknesses in the application of the ACC’s coercive powers when dealing with uncooperative witnesses. Many witnesses under examination from the ACC refuse to answer questions or employ delaying tactics, frustrating the efforts of ACC operations and potentially derailing the entire investigative process. This recommendation, if adopted, means that anyone who uses such tactics will face contempt hearings. In closing, I would like to congratulate and thank all of the other committee members for their work and cooperation. (Time expired)

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

I join with my colleague the member for La Trobe in speaking to this report of the Joint Committee on the Australian Crime Commission. The Australian Crime Commission is the nation’s premier law enforcement agency. Its purpose is to combat serious and organised crime. To do that, it has been given extraordinary powers by virtue of this parliament. It has the power to compel people to appear before it and to demand that they answer questions or provide documentation. Unlike other police or criminal law jurisdictions, there is no right to silence. The coercive powers exercised by this body are unique when it comes to law enforcement in this country. As a consequence of that, this parliament in 2002 put various measures in place to ensure that there would be appropriate balance between the exercise of these extraordinary powers in the fight against serious and organised crime and the preservation of civil liberties. Section 29(1A) of the Australian Crime Commission Act requires that, before issuing a summons, an examiner must be satisfied that it is reasonable in all the circumstances to do so and that the examiner must record in writing the reasons for the issue of the summons. The next section deals with the issue of notices in the same way.

I am not a lawyer, yet I would have thought that was pretty plain on the face of it and meant that, before issuing a summons, you would actually write your reasons—but not so, it seems. Our studious legal colleagues in the ACC apparently developed the practice of writing those reasons at any time, including well after the event. That is what came to a head in the Supreme Court in Victoria. Justice Smith held that, for a summons to be valid, those reasons must be issued at the time and recorded in writing prior to the summons being issued. As we have just heard from the member for La Trobe, that put in jeopardy almost 600 active investigations. These are not just your normal police investigations; these are investigations into serious and organised crime. It was on that basis that the government—I think it was in the last sitting we had before parliament was prorogued last year—introduced the Australian Crime Commission Amendment Bill 2007. It sought to validate all those summonses and notices that had been issued but which, by virtue of Justice Smith’s decision, had become invalid. In other words, it kept on foot those investigations and the evidence that was collected in pursuit of those summonses and notices. Furthermore, it retroactively validated those into the future.

We do need to have a balance. It is our role to ensure that there is a balance between an individual’s rights and the rights of the community, which suffers the scourge of serious and organised crime. That is what we attempted to do in the original legislation, but those exercising the powers of the ACC failed to interpret that. Like the member for La Trobe, I too was very concerned when the joint parliamentary committee was not aware of the proceedings that were on foot before Justice Smith in the Supreme Court in Victoria. As a consequence, we were caught last year quite unawares of the need for this retrospective legislation. We had no intention of holding up or prejudicing those investigations, and those matters proceeded through in some haste to ensure that those investigations remained intact.

We have now recommended that the original drafting of the legislation be adhered to. We have recommended that an examiner must record the reasons for summonses and notices when they are issued. As a matter of fact, today the head of the ACC, Alastair Milroy, has written to the committee secretariat saying that, on the basis of the committee’s recommendations, they will comply with that intention.

Bruce Scott (Maranoa, National Party) Share this | Link to this | Hansard source

Order! The time for debate on this report has expired.