David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I thank members for their contributions to this debate. The Australian Crime Commission Amendment Bill 2007 clarifies that the Australian Crime Commission examiner can record their reasons for issuing a summons or notice to produce before, at the same time or as soon as practicable after the summons or notice has been issued. I say that to clarify very clearly that section 28(1A) of the act has a provision which says:

Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so.

The section goes on to say:

The examiner must also record in writing the reasons for the issue of the summons.

The technical issue at stake here in this amendment is when—that is, when the examiner should record in writing the reasons for the issue of the summons. We have recently had His Honour Mr Smith in the Victorian Court of Appeal stating that he should do that before the issue of the summons. Nowhere in the section is that made clear.

It is not practicable to await a parliamentary committee inquiry into the Australian Crime Commission Bill before proceeding to debate and passage. As I have said, as a result of the findings of Justice Smith in the Brereton matter, there is a pressing risk of collateral challenge to the validity of quite a large number of summonses and notices issued by the Australian Crime Commission examiners. Significant prosecutions could be derailed or delayed, based on challenges to the validity of summonses and notices if we do not make these amendments now.

The government does support, as I support, having the maximum degree of parliamentary review of amendments of this kind that is possible. I will therefore write to the chair of the Parliamentary Joint Committee on the Australian Crime Commission to invite the committee to review these amendments, albeit after the event. If deficiency is found or the degree of protection, safeguards, checks and balances is not found to be sufficient, the government will then consider those findings and seek to address those points raised, whilst seeking to preserve the integrity of the intent of the legislation.

I also briefly mention an issue that I feel strongly about and that, of course, is retrospectivity. I note that some provisions of this bill apply retrospectively to provide that the 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 the summonses or notice to produce. Those persons would, no doubt, in the practical reality of defending their position, instruct their counsel to take proceedings in line with the precedents set out in Brereton. They would incur considerable cost. They would incur expense and time, and, indeed, court time would be taken in the pursuit of this recently elicited precedent. We seek to stop them doing that whilst also providing for the integrity, as I say, of the intent behind these provisions.

The government considers, however, that through amending this act at this time this is a just and appropriate outcome. It does not consider that a failure to record reasons for issuing 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 the technical grounds to challenge the admissibility of evidence and thereby escape conviction. Prosecutions need to turn on facts and evidence, and I for one, in the scope of these provisions, do not believe that they should turn on matters of a technical nature. We seek to clarify an apparently equivocal provision because it has now been construed and I am respectful of His Honour’s decision.

We seek to clarify that so that the Crime Commission can move forward with confidence and, indeed, so that those people who may come under the purview of this legislation as citizens will know precisely where they stand. Need I say that the government will always be vigilant. Where there is a technical issue that seeks to allow for a defence issue to be raised on the basis of a misinterpretation, vagueness or an uncertainty within the legislation, the government in these circumstances will be ready to act.

Question agreed to.

Bill read a second time.