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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Karen McNamara (Dobell, Liberal Party) Share this | Link to 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.

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

I rise to speak on the Law Enforcement Legislation Amendment (Powers) Bill 2015. This bill makes amendments to the Australian Crime Commission Act 2002, the Law Enforcement Integrity Commissioner Act 2006 and the Public Interest Disclosure Act 2014. Primarily, this bill sets out to clarify the powers of the Australian Crime Commission when conducting examinations and the powers of the Integrity Commissioner to conduct his or her hearings, putting beyond doubt the intention of the parliament.

Currently, the Australian Crime Commission and the Integrity Commissioner examinations of serious and organised crime or cases of corruption within the law enforcement system involve questioning persons, compelling them to produce a document or to answer questions—failing to do so is a crime. We refer to that as coercive powers. Ordinarily, our police services and other law enforcement agencies do not have these powers. These powers were very rarely allocated to other law enforcement bodies and, as a consequence, there was a need for the Crime Commission and its predecessor, the National Crime Authority, to be invested with these powers. A specific parliamentary joint committee was established to oversee the Australian Crime Commission on the basis that it holds these coercive powers.

There has been no apology from parties of either side of this House for why this came about in the first instance. It was clearly seen as a necessary mechanism to fight contemporary serious and organised crime. However, more recently, as demonstrated in a number of cases, statutory interpretation of the legislation has had the impact of limiting the scope of these powers in circumstances where answers given in evidence under coercive powers can be restricted in criminal proceedings. This bill tries to rectify that. These powers have been read down by various judicial and appellate bodies to the effect of reducing what was, I would contend, the original intention of the legislation when it passed this House initially. For example, the case of Seller and McCarthy in the New South Wales Court of Criminal Appeal was dealing not with the Australian Crime Commission but with the evidence that was given under coercive powers. The appellate court found that some of the evidence from the examination material could be unfair and therefore should not be considered in subsequent criminal proceedings.

The previous speaker referred to a case in the High Court: X7 v Australian Crime Commission. In this case the High Court found by a majority that the Australian Crime Commission was not authorised under the ACC Act to examine a person who was already charged with a specific offence. I believe that this was not the intention of the legislation when it was initially passed by the parliament. However, with respect to their honours, their decision impacts the legislation by reading down the powers of the ACC. What we intend to do with this legislation, which is supported by both sides, I am happy to say, is to ensure that we clarify the intention of the parliament by bringing the legislation back to what it was originally meant to do when it was first passed by this parliament.

We are very fortunate in having an organisation such as the Australian Crime Commission. It has now developed to be the country's premier criminal intelligence agency. It is probably not widely understood that this organisation works very much hand in glove not only with the Australian Federal Police but with the law enforcement agencies that apply in each of our state and territory jurisdictions. The evidence that it is able to elicit by using its very special powers is instrumental in attacking serious and organised crime. It is something which I think we should be proud of in this place. Efforts in this regard have always been subject to bipartisan support. Clearly, Labor will always support measures that improve the work of our intelligence and law enforcement agencies and ensure that they have the tools to do their very important job. It is important that we give the people whom we invest with the responsibility of protecting our communities the powers that they need, particularly when it is a fight against serious and organised crime.

As a long-serving member of the Parliamentary Joint Committee on Law Enforcement, and chair of it for many years, I have certainly been kept informed of the work of the Australian Crime Commission, particularly in the area of tackling serious and organised crime. Over the years, the Parliamentary Joint Committee on Law Enforcement, which has conducted many inquiries into serious and organised crime, has made many recommendations to governments of both political persuasions. I cannot recall that there has ever been a dissenting report by that committee. Happily, governments of either side have, by and large, accepted the recommendations of the Joint Committee on Law Enforcement.

The committee is certainly of the view that there is an increasing risk to our community from serious and organised crime, including transnational crime. At the moment, the estimated cost of such crimes to our community is in the vicinity of $15 billion each year. Given the substantial harm to our communities and to economic activity, the committee initiated an inquiry into legislative arrangements designed to thwart serious and organised crime. As part of that, the parliament charged a joint committee with conducting an international review of laws that were applicable in jurisdictions such as North America, Europe and the United Kingdom and to look at the contemporary legislative mechanisms for combating serious and organised crime.

It was through that exercise and through the recommendations of that committee that the initial unexplained wealth legislation was introduced into, and passed by, this House. The significance of that was that, along with contemporary efforts in law enforcement, there was a realisation that organised crime is not just a criminal venture, it is a business—and, like every business, it is profit driven and it will look for windows of opportunity to exploit its enterprise. Criminals will exploit issues of state and territory boundaries and constitutionality, where difficulties arise in terms of powers. This brings us back to this bill, which is about this parliament trying to close that window of opportunity in the application of those coercive powers. As the name implies, the unexplained wealth legislation is designed to attack criminals where they feel it most, in the hip pocket, to undermine the business model of the criminal enterprise and also to make it easier for law enforcement to track the kingpins that underpin that business relationship.

As I said earlier, the ACC has developed into the nation's premier criminal intelligence agency and plays a crucial role in combating crime. Over the last 12 months alone the ACC has seized more than $23 million in cash and more than $150 million in assets; shared more than 2,000 intelligence reports with over 254 different agencies; produced 60 reports on outlaw motorcycle gangs; seized more than $386 million worth of drugs; engaged in the disruption of 39 different criminal entities; and conducted 263 coercive examinations.

The powers I have outlined are necessary if we are to be serious about fighting serious and organised crime in this country. You cannot expect our law enforcement agencies to simply wait for the commissioning of a crime, hoping to effect an arrest after the event. For every crime that is committed, there is already a victim of a crime. We expect our criminal intelligence agencies to work together to ensure that crime and criminal enterprise are disrupted. This bill seeks to give greater clarification of the intentions of this parliament in respect of the activities of the Australian Crime Commission and its powers with respect to coercive examinations to make it less likely that they will be struck down in future proceedings before the courts. I support the bill. I would also like to commend the efforts of all those brave men and women who serve this country in the range of law enforcement agencies. They do a job that, thankfully, makes a difference for our communities. They experience various activities. They see the best and the worst of our communities. If it were not for these people who are brave enough to put on a police uniform, we would be very much a society of the worst.

Steve Irons (Swan, Liberal Party) Share this | Link to 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.

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

The Law Enforcement Legislation Amendment (Powers) Bill 2015 will ensure that the Australian Crime Commission and the Integrity Commissioner have the powers they need to combat serious and organised crime, foreign fighters and law enforcement corruption. The bill will place the existing powers and practices of the Australian Crime Commission and Integrity Commissioner on a stronger legislative footing. It will also clarify that the Australian Crime Commission Act allows the Crime Commission to examine people who have been charged with an offence. The bill will also improve the safeguards in the Australian Crime Commission Act and Law Enforcement Integrity Commissioner Act to protect the fair trial of any person questioned, making them clearer and stronger.

The member for Batman and the member for Fowler provided a very useful summary of the bill and the issues it seeks to address. The measures in the bill are critical to support the efforts of our law enforcement and intelligence agencies to combat serious and organised crime, terrorism and corruption. I thank those members and the opposition for their support for this important piece of legislation. I would particularly like to thank the members for Dobell and Swan for their useful contribution and support of the bill.

This bill confirms the powers of the Crime Commission and the Integrity Commissioner. It does not expand them. While these are significant powers, they are necessary to counter the growing threat of organised crime, terrorism and law enforcement corruption. The individuals and groups involved in these activities are increasingly sophisticated, they adapt very quickly and they are expanding their operations into new markets. Traditional policing methods are an important part of disrupting and dismantling organised crime syndicates. They are also important in catching the corrupt law enforcement officers that enable organised crime to gain a foothold.

However, these methods are not enough on their own. To catch the cartel kingpins and to root out corruption, our police must be supported by information obtained from the questioning powers—the extraordinary powers—of the Crime Commission and the Integrity Commissioner. This bill will make those powers clearer. It will put the collaboration of the Crime Commission and the Integrity Commissioner with their partners on a stronger footing, and it does so in a way that strengthens the mechanisms that protect the fundamental principles of our criminal justice system about the right to a fair trial. The amendments made by this bill are important in ensuring that law enforcement agencies can obtain timely and relevant information and that they can act on it to protect the Australian community. With that, I thank the House for its support of this very important legislative measure and I commend the bill to the House.

Question agreed to.

Bill read a second time.