Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the Australian Crime Commission Amendment Bill 2007. Can I say at the outset that this bill has been rushed in, which is particularly evident in the preparation—perhaps you could call it that—that has gone into the bill to date.

I will go to the purpose first. The purpose of this bill is to amend the Australian Crime Commission Act 2002:

... 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.

It also seeks to protect those summonses already issued from being challenged—that is, these summonses are not invalid merely because the reasons were not recorded prior to their issue. This has arisen, as we are informed by the government, from a court case with the Australian Crime Commission against Brereton in 2007. The judgement was handed down on 23 August 2007, as I understand it.

Smith J said basically 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. That case dealt with the issue of two subpoenas, and I will come to those shortly, but it does seem to demonstrate a couple of things. One thing is that the government has taken a view that this matter needs to now be progressed urgently, and it has introduced the bill at very short notice. The bill has not had the opportunity of going to a Senate committee, as many of these bills might otherwise. The opposition was given notice of this bill only last night.

I will give some background. The Australian Crime Commission is a Commonwealth statutory body working 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 fight against serious and organised criminal activity. The powers of the ACC are large. The ACC, through an examiner, may summon a person to appear before them at an examination to give evidence and to produce such documents or other things as are referred to in the summons. And, of course, an examiner has a special role under the legislation. An examiner has the power, under the ACC Act, to conduct an examination for the purposes of a special intelligence operation or special investigation. Examiners are independent statutory officers appointed by the Governor-General, and the purpose of an examination is to inform an examiner on matters that may relate to the subject matter of the special intelligence operation or investigation.

The government, as I have said, has rushed this bill to the parliament in response to the Australian Crime Commission v Magistrates’ Court of Victoria (at Melbourne) & Brereton [2007]. Briefly, perhaps it is worthwhile going to the circumstances of that case. Mr Brereton attended but refused to be sworn or make an affirmation of the truthfulness of the evidence. This was a matter that examiners had requested he attend. Brereton was then subsequently charged, as I understand it, under section 30 of the ACC Act regarding that refusal. Section 30 relates to a failure to answer questions. A person who contravenes section 30 subsections (1), (2) or (3):

... is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

It is, in fact, a serious offence. The counsel for Mr Brereton sought to subpoena two lots of documents from the ACC. The first lot was any documents pursuant to section 28(1A) of the Australian Crime Commission Act 2002 which record evidence that the examiner was satisfied that it was reasonable to issue an examination summons. The second lot was any document 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. The ACC sought to have both subpoenas struck out as an abuse of process on the grounds that they served no legitimate forensic purpose and constituted, in fact, a mere fishing expedition.

To cut to the chase, the magistrate rejected the application to have the subpoenas struck out, but it also transpired during those proceedings that to demand the person to take out an oath or affirmation, say, in the context of the proceedings there must first be 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 as to whether or not the examiner has put his reasons in writing. When that occurs, it may affect the legality of the summons itself. The decision was appealed to the Supreme Court of Victoria, where the Supreme Court upheld the magistrate’s decision. The substance of the bill is to address those circumstances that were raised in the Supreme Court.

The first point is that the bill allows an examiner to execute a summons or notice to produce documents who may not be the same examiner who issued the summons or notice to produce. That in itself does not arise directly from the proceedings, but it is something that I will come back to. The second point is in respect of the matter that is at least on point with the decision. Labor understand that situations in respect of that first point may arise—for example, when there is leave for urgent duties—and where you can imagine that is a requirement that can be sought, and we do not cavil with that provision.

The issue is that 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. It is important to note in that context that the report released in November 2005 of the Parliamentary Joint Committee on the Australian Crime Commission into the Australian Crime Commission Establishment Bill 2002 recommended at recommendation No. 14—and it is worth going to—that:

... the bill 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 that they indicate in writing the grounds for having such an opinion.

The PJC also noted in the report that the independence of the examiners can be made more evident if the bill is amended to make specific provisions for examiners to assure themselves, before exercising their coercive powers, that it is appropriate and reasonable to do so and that they indicate the grounds for forming such an opinion. Some members of the PJC believed that the reasons should be recorded in writing. Although there was no formal government response to the PJC’s report, the government’s response, if you look, seems to be found in Senator Ian Campbell’s second reading speech on 15 November 2002, which also specifically addresses recommendation 14. He said:

The government agrees to this recommendation. The bill—

that is, the Australian Crime Commission Establishment Bill 2002—

has been amended to provide that examiners must satisfy themselves that it is reasonable in all the circumstances to exercise powers to issue a summons or a notice to produce and will be required to reduce to writing the reasons for taking the decision.

These amendments are outlined in items 9 and 10 of the Australian Crime Commission Establishment Bill 2002 supplementary explanatory memorandum. They do require an examiner to be satisfied that it is reasonable in all the circumstances to issue a summons or notice to produce. The provisions also require the examiner to record in writing the reasons for the issue of the summons. It does seem, though, even at that point that neither Senator Ian Campbell’s second reading speech nor the amendments in the supplementary explanatory memorandum to the 2002 bill unambiguously stated when the reasons in writing to issue a summons or notice to produce should be provided by an examiner.

Clauses 2 and 7 of the bill before us amend sections 28(1A) and 29(1A) of the ACC Act to expressly provide that an examiner may record their reasons for issuing a summons or notice to produce before, at the time or as soon as practicable after the summons or notice has actually been issued. It is concerning to Labor, as it would be to the wider community, that the government does not appear to have had an understanding of how the practice of providing a record of reasons subsequent to the issuing of a summons or notice to produce actually operates within the ACC. In working through this, there are a range of matters that we will take the opportunity in the committee stage to examine, but hopefully it will not take too long this evening. They relate to the issue of how many summonses have been issued; how they have been audited; how they have been checked against the process of ensuring whether the summons was issued with written reasons at, prior or subsequent to the issue of the summons; and how the government has managed that process to date.

Labor understands that there are a significant number of cases that are currently before the courts and that information would also be helpful to understand how many cases can be affected by this decision. It does provide a situation where it appears a legal technicality surrounding the recording of reasons rather than the actual existence of a substantive reason would of itself allow those guilty of serious organised crime to, in fact, escape. That is of concern, especially where these are significant cases or could be potentially significant cases where significant time and effort has been employed. Labor understands why the amendment has been sought.

Clause 5 of schedule 1 ensures that the failure of an examiner to comply with the technical requirements of recording reasons for the issuing of a summons or notice to produce does not affect the validity of such an action. It is important to note, though, that the bill also provides for retrospective operation. Clauses 10 and 12 validate summons and notices to produce retrospectively since the commencement of the ACC Act. Those matters do require a clear demonstration by the government. They can take that opportunity in the closing debate to demonstrate the reasons for retrospectivity, because it is a fundamental rule of law that generally in Westminster systems retrospectivity is not permitted and that most people should be aware of what the law is at the time that they are charged or that it is sought to have the law exercised.

But in this instance, weighing the matter itself, Labor will support the legislation. It does that with the knowledge that the government does have a heavy and clear onus upon it to be able to demonstrate, through these proceedings this evening, that for those matters that have been raised there are clear and unequivocal answers. Labor recognises that in addition, in certain circumstances, urgent action is necessary due to operational requirements that the practice of issuing a summons and then subsequently reasons to be written down can occur. It should really be standard practice that in all circumstances you can form reasons, write those reasons down, issue the summons and at least ensure that you then have a proper audited process.

Given that this is the last week in which parliament is likely to be sitting before a federal election, Labor will agree to facilitate passage, but we will continue to have a look at the operation of this provision. We are not going to provide unqualified support for it. We need to ensure that it does operate as fairly as it is able—that it is in fact a technical hitch that has occurred and that it can be remedied without causing grave injustice to individuals—and that the law itself works properly and appropriately. From a broader perspective, when you examine the issues in detail you can see that the matters raised in the Victorian case do provide some substantive reasoning for the government to have now sought to provide this amendment.

There are a range of issues that go to the matter itself. This matter was ventilated in the decision of the Victorian Supreme Court. The matters I have adverted to were provided with some reasoning within the decision. It does not appear to be—although I am open to correction on this—the substantive point that was made by Justice Smith on the issue, but it does appear to be a subsidiary point or a collateral point that was made. Having said that, what is important to understand is that there are matters that do need to be carefully considered. Page 9 of the decision reads:

… the clear purpose of s 28 (1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an ‘audit trail’. Under s 59 of the ACC Act that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission, constituted under Part III of the ACC Act: ... as is not uncommon with investigative agencies, the Parliament has counter-balanced the secrecy regime it has erected to ensure the effectiveness of the ACC’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee ...

It may also be a matter that should be returned to the ACC parliamentary committee for further monitoring, oversight and examination. It would be encouraging for the minister to advise on that. Justice Smith’s comments seem to have been made in the context of this issue. It is not raised as the primary point, but it is still an important point that the government cannot ignore.

They are not the only stakeholders in this. The Law Council has raised with me legitimate concerns about the impact of the bill. The Law Council suggests and believes that the government intends to pass in haste a bill which is specifically designed to perpetrate an injustice. The government does need to explain how their concerns will be allayed.

Of course, we know that Michael Brereton is currently being prosecuted in Victoria for refusing to be sworn or take an affirmation after he answered a summons to appear before the Australian Crime Commission and we wait to see how his rights will be affected. But we also cannot put aside the issue that these sorts of matters should not be attacked on mere technical grounds. It is important, in the interests of justice, that justice is not only done but seen to be done.

I will take an opportunity during the committee stage to raise some of the more specific matters. I suspect the minister will be able to take it on notice to provide answers if he is not able to do so this evening, but fundamentally Labor has indicated that it will support the legislation.

I remind the minister, in closing, that he does have a statement of expectation from the Australian Crime Commission where he, as the Minister for Justice and Customs, has indicated his expectation of the Australian Crime Commission—and he goes through a range of eight points.

I encourage the minister to also include the issue of ensuring that there is oversight and audit of these types of work, because without a clear audit trail, without clear oversight, without the figures being provided and collated, areas like this can unfortunately creep in. You can see how easily they can be perpetrated over a significant amount of time. The legislation was first introduced in 2002 and was again reviewed in 2006 and the issue has only really come to light as a collateral matter in a Victorian case. That occasionally does happen. In this instance it has happened and it does have serious implications for the ACC’s current procedures. I encourage the minister to advise how he will resolve—(Time expired)