Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

The government and the chamber will not be surprised to hear that the Democrats are at best a little peeved at the process before us. Certainly I attempted to convey that in my remarks this afternoon when we debated the idea that this bill should be exempt from the cut-off provision. That had little to do with, although it was related to, the complex or controversial nature of this legislation—legislation that the government refers to as dealing with a technical matter. It was partly, and primarily at that stage, because of the process. It is not acceptable in this house as a house of review for senators to receive legislation of a controversial, even urgent, nature—we received it this morning and we received a briefing, for which we are thankful—and then have it exempt from the cut-off provision and debated the same day.

I understood from the debate earlier that Senator Abetz, who was on duty in the chamber, was to endeavour to not delay unnecessarily this process for the benefit of the chamber—not just for the crossbenches, not just for the Democrats, but so that there could be some pretence of consultation and debate within the broader community, namely the legal community. My understanding was that there was going to be some attempt to delay this process. The government may suggest that there may have been a couple of hours—for which we are pathetically grateful and thank you because it did enable us to make some phone calls and consult with relevant authorities and groups—but to deal with this legislation on the same day that it is sighted is not acceptable. I know it is par for the course these days, and I hope that will change regardless of who is in power. This is an unacceptable use of the Senate’s powers, and the government could at least have waited until tomorrow morning.

Having put on record my concerns with the process, I am happy to turn to the substantive nature of the legislation before us. In the time the Democrats have had to be briefed on, analyse and scrutinise this bill—and of course consult with relevant groups in the community—we believe this bill amounts to a government patching up its mistakes; and doing so at the expense of fundamental legal principles and showing absolute contempt for the law-making procedures in this place. The bill, as we have heard, amends the Australian Crime Commission Act 2002. It is clearly a direct response to the decision of Justice Smith in the Victorian Supreme Court in ACC v Brereton [2007]. Its intent is to rectify a perceived deficiency in division 2 of the act, exposed by the court’s decision. As we know, division 2 deals with the coercive powers of the ACC—and these powers are by no means uncontroversial. So, before we even get to the point of debating the legislation and the change before us, we already start with the recognition and from the premise that the current powers and the relevant division are indeed controversial.

Division 2 allows an ACC examiner to compel witnesses to give evidence, including in circumstances where that evidence may be self-incriminating. Of course, various peak legal bodies have consistently opposed the extensive, widely used and wide-ranging coercive powers of the ACC examiners on the basis that they do represent an unjustified abrogation of the privilege against self-incrimination. I am aware of some of the debates that have taken place on this matter, whether through the National Crime Authority committee days or the ACC committee and the relatively new legislation, but these powers are controversial—and they are questioned at best and condemned at worst by a number of groups in the community.

In ACC v Brereton the court ruled that section 28(1A) of the act required an ACC examiner to record in writing the reasons for the issue of a summons or notice to produce, issued under section 2 of the act, prior to the issue of a summons. Indeed, counsel acting for the ACC in that case was up-front to the court. He conceded that the existence of a document regarding the examiner’s reasons for issuing a summons was a condition precedent to the issue of the summons—in other words, a summons could not be issued unless the ACC had first justified its reasons for doing so. At this point, it is interesting to reflect on what the judge hearing the matter said. His Honour Justice Smith said:

The preconditions are no doubt specified because of the significant in-roads made to the right to silence and the need to ensure that the power is properly exercised.

The bill proposes to amend the act such that the reasons for the issue of the summons, required to be recorded under section 28(1A), will now be able to be provided as soon as practicable after the issue of the notice. The government is telling us that this amendment is justified and necessary because the situation as it stands is problematic where a summons has to be issued urgently or where a large number of summonses may be issued at one time. The government says, therefore, that this is a technical amendment. We have heard this as a justification and we have seen this as a justification, and I am sure it will be put forward again. But a lot of groups do not agree that this is merely technical—and, I tell you what, the Australian Democrats beg to differ on that point. I consider that the explanatory memorandum is another in a long line of explanatory memoranda which are arguably misleading in a similar manner.

It is clear from Justice Smith’s reasoning that he did not view as a perfunctory exercise the requirement for an ACC examiner to issue reasons. On the contrary, Justice Smith considered that reasons are a necessary and substantive requirement of the decision-making process undertaken by the examiner. I am sure that when Justice Smith made this finding he did not envisage a legislative fix to the problem that simply removed the protective element.

I have discussed the extraordinary nature of the ACC’s coercive powers to compel a person to produce documents, to attend an examination and to answer questions even when the information sought may be self-incriminating; but, in addition to this, the ACC’s extraordinary powers are exercised, as we know, behind a veil of secrecy. We should expect in these circumstances that the power is exercised according to the letter of the law. As the Law Council puts it:

Strict compliance with the law is the least we can expect from enforcement agencies exercising extraordinary powers. Parliament would send a very dangerous message if it rewarded agencies which ignore the requirements of the law by passing retrospective legislation which not only shields the offending agency from the consequences of their past noncompliance but reduces the safeguards they must comply with in the future.

That is from the Law Council, the peak representative body for the legal profession in this country. They have put out a statement today with the same—or arguably much shorter—level of notice as the rest of us. They are not impressed by this legislation.

Section 28(1A) of the act contains dual requirements which are inherently linked: (a) that an examiner only issue a summons if they are satisfied that it is necessary to do so and (b) that they record their reasons in writing. The second item is not a mere technicality as the government suggests—far from it. The requirements operate together as a safeguard against the misuse of the coercive powers and to deliver a degree of tangible accountability each time the powers are exercised. After the Brereton decision, the government was caught between a rock and a hard place. It is apparent that for some reason the ACC decided that it did not need to record its reasons—at least prior to any summonses or notices to produce being issued. This was despite the wording of section 28(1A) as it stands, which I think pretty clearly states that written reasons should be recorded.