Helen Polley (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to speak on the report handed down by the chair of Parliamentary Joint Committee on the Australian Crime Commission on the review into the Australian Crime Commission Amendment Act 2007. Following on from the comments of Senator Hutchins—and I place on record my total agreement with the comments he has made on this report—I would like to focus on a particular aspect of the report—that is, the retrospective provisions of the amending act.

The committee heard from the Australian Crime Commission that they believed that the ruling in August 2007 by Justice Smith in the Victorian Supreme Court had potentially extensive prejudicial implications. For a summons to be valid, the reasons for its issue must be recorded in writing prior to its issue. There was apparently a routine practice of recording reasons for summonses after their issue. Mr Alastair Milroy, the CEO of the ACC, said at our June 2008 hearings:

... the judge’s comments raise a doubt about the validity of substantially all of the 5,000 summonses and notices issued by the ACC since its establishment in 2003.

The parliament was told by Senator Johnston on the introduction of the amending act in September 2007 that up to 600 summonses and notices could have been affected by Justice Smith’s decision. However, the parliamentary joint committee asserts that information and material obtained through a summons or notice not in strict compliance with the act would not necessarily have been affected by Justice Smith’s decision. Of course, the PJC has no reason to believe that any of the summonses or notices would not have held up to judicial scrutiny. It is obvious that the ACC, the government of the day and the parliament itself had genuine concerns for the passing of the amending act.

The committee also found that there is a real risk that persons who have previously failed to comply with an invalid summons would be retrospectively liable to serious criminal sanction. Sections 10 and 12 of the amending act work to validate summons that would otherwise have been void. As a result, citizens have not only been denied the right to challenge the Australian Crime Commission, but it is now a crime to do so. In addition, evidence obtained from a previously unlawful summons notice can now be used to sanction an individual who was not necessarily required to produce evidence. The obligation to cooperate with Australian Crime Commission examiners arises upon the serving of a valid summons.

We as a committee are aware that there is a real and pressing need to prosecute serious crime. However, as Australians, offenders have a right to challenge the means by which evidence is obtained—a right, I believe, that all in this chamber would support. The PJC has also found that, by amending the act, a number of other issues were raised regarding various international treaty obligations. I believe that the International Covenant on Civil and Political Rights was one of those mentioned in the report. That is why the committee believe that the department must be more vigilant regarding Australia’s international and human rights obligations when considering legislative matters such as the amending act and sections 28(1A) and 29(1A).

All these issues have given rise to the recommendations of the PJC that sections 10 and 12 of the amending act be repealed, since they obviously consist of retrospective legislation which is inappropriate in all but the most exceptional cases. The committee has also made a number of other findings. However, I believe the issue of retrospective legislation is extremely important. That is why I am pleased that the committee chose to recommend the repeal of the relevant sections.

In conclusion, I add my thanks, along with those of the chair of the committee, to the PJC secretary, the secretariat staff and all those who worked to put this report together. I would particularly like to acknowledge the witnesses and those who made submissions. I also add my thanks to the chair of the committee and my fellow members for all their work over that extensive period of time in preparing what I believe was a very important report. I commend the report to the Senate. I seek leave to continue my remarks later.

Leave granted; debate adjourned.