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

I will try and confine my remarks to eliciting some response to the issues at hand rather than going to the details of substantive submissions. Is the minister able to say how many matters are affected by the invalidity? Can those summonses that have been issued which would fall to this technicality if the legislation was not passed be ascertained? The second part of that—and I will try and encapsulate the broader issues as well—is indicated in the Law Council’s submission, which states, ‘Also, as a consequence, people who had previously committed no offence in that they had failed to comply with an invalid summons will suddenly be retrospectively liable to criminal sanction.’

Is there also a class of individuals who have failed to comply with an invalid summons and could be attacked for the technical reasons that have been highlighted by His Honour Smith? How do the processes of the ACC operate in terms of the examiner dealing with the issue of the summons? Perhaps the minister could confirm whether the examiner forms the reason and then, by and large, takes the opportunity of issuing the summons because the operations might be live, happening or unfolding, and then, subsequently or contemporaneously to the issue of the summons, he prepares his written reasons—the written record. Prior to an examination those written reasons would be available and could be challenged by a counsel for the person who is the subject of the summons for a range of reasons. Of course, the government could argue public interest immunity and the like.

Are statistics available which demonstrate that the examiner might do it prior to the summons, at the time of the summons or after the summons? If none of those statistics are kept, is there an intention to ensure that there is an audit trail under the proposed new regime? What you are now suggesting is that those three distinct possibilities will be available to the examiner in the new regime—that is, that the record be made before the issue of the summons, at the same time as the issue of the summons or as soon as practicable after the issue of the summons.

In addition to that, what does ‘as soon as practicable after the issue of the summons’ mean? Will another problem be created in determining when that point is? Can it be collaterally attacked on the basis of a technicality with regard to the meaning of as soon as practicable after the issue of the summons? I know it has been difficult to determine the length of time, but it is likely that at some point it will be outside as soon as practicable. You could end up with another opportunity for a collateral attack in respect of the summons, in that it may be more than a practicable time afterwards. Of course, that would turn on the facts and issues of the case itself. It concerns me that another technical point might open up down the track. When you read the original section 28(1A) and go back and look at the records, you will find that it did not seem to seize the issue of when the examiner for the ACC should reduce the reasons that they had already formed to writing—whether it was an oversight or whether in fact it was already in their mind how the process would work and nobody sought to turn their mind to it. I will pause at that point and give the minister an opportunity to answer.