Helen Polley (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Aged Care) Share this | Hansard source

Labor supports the measures contained in this bill, the Law Enforcement Legislation Amendment (Powers) Bill 2015, as they provide clarification around powers, keeping faith with the original intent of the Australian Crimes Commission, the ACC, and the Australian Commission for Law Enforcement Integrity. The ACC and ACLEI have sought these legislative changes on the basis of their practical experience in working with the existing legislative regime, particularly with past charge examinations.

The bill contains safeguards that apply to hearings so that every Australian continues to enjoy the right to a fair trial and a fair hearing. The purpose of this bill is to amend the Australian Crime Commission Act 2002 to clarify the powers of the ACC examiners to conduct examinations and, similarly, amend the Law Enforcement Integrity Commissioner Act 2006 to clarify the powers of the integrity commissioner, supported by ACLEI, and to conduct hearings and to make a consequential amendment to the Public Interest Disclosure Act 2013, to ensure that the definition of 'designated publication restrictions' refers to the amended provisions in the ACC Act.

If I can move to the structure of the bill, the bill is divided into two schedules: schedule 1, divided into two parts, which introduces amendments to the ACC Act and to the PID Act; and schedule 2, which introduces amendments to the LEIC Act. As the relevant provisions of the ACC and the LEIC acts are similar, schedules 1 and 2 make similar amendments.

The background to this change is as follows. The ACC and ACLEI conduct examinations and hearings which may involve compelling a person to answer questions about matters or produce documents or things relating to an ACC special operation or special investigation into serious and organised crime activities or relating to an investigation into law enforcement corruption. These examinations and hearings enable the ACC and ACLEI to obtain information that would not otherwise be available or which could only be obtained after long and complex investigations. Examination material, for example, plays an important role in assisting the ACC to develop an understanding of how serious and organised crime operates, to analyse this information with other relevant information and to disseminate it to the Commonwealth state and territory partner agencies as part of an intelligence product. A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing on the basis that it might incriminate them or expose them to a penalty. However, there are limitations on the circumstances in which answers can be used in evidence against a person in criminal proceedings or proceedings for the imposition of a penalty.

The powers of the ACC and ACLEI to conduct examinations and hearings have been considered in a number of recent cases, discussed below, including R v Seller and McCarthy (2013) 273 FLR 155 (Seller and McCarthy), X7 v Australian Crime Commission (2013) 248 CLR 92 (X7), Lee v NSW Crime Commission (2013) 251 CLR 196 (Lee No. 1) and Lee v R (2014) 88 ALJR 656 (Lee No. 2). These cases have placed limits on the use of the examination powers in certain circumstances in which they had been previously utilised. The bill is intended to address these issues to clarify the ability of the agencies to exercise their powers as before, in circumstances which government has stated are in accordance with the original policy intent.

I will now outline the ACC examination powers in relation to this bill. The following is a summary of the current operations of ACC examinations. An ACC examiner may conduct examinations as part of a special ACC operation or investigation. The examiner may conduct the proceedings as they see fit, allow legal practitioners to be present and determine when it is appropriate for a witness to be examined or cross-examined, and, while proceedings must be held in private, a witness must be informed of any others who are present.

The Evidence Act 1995 of the Commonwealth does not apply to such an examination, so common law rules of evidence, subject to the ACC Act provisions, apply. The examiner may make such arrangements as are necessary to avoid prejudice to the safety of the person summoned, or protect them from intimidation or harassment. The examiner has the same protection and immunity in exercising their functions as a justice of the High Court of Australia. The examiner is exempt from serving a record of written reasons for decisions to issue a summons under the ACC Act. Any report that sets out findings that an offence has been committed or makes a recommendation to institute a prosecution must not be made available to the public unless it is based on evidence that would be admissible in prosecution of a person for that offence.

Examiners have power to summon or compel witnesses to attend examinations and to give evidence on oath or affirmation when the board has made a determination of a special operation or special investigation. A person and their lawyer, if legal professional privilege does not apply, must not fail to attend or answer questions, where it is proven that a valid summons was issued, under penalty of fines and/or imprisonment. The person may challenge the validity of the summons when it is an element of the offence or as an abuse of process.

The person and their lawyer may also be held in contempt of the ACC for similar conduct towards the examiner, but the examiner must inform the person of their application, stating grounds and evidence in support, for it will be dealt with by the Federal Court of state or territory Supreme Court. It is an offence to obstruct or hinder the ACC or an examiner in the performance of their functions or to disrupt an examination or threaten any person present at the examination before an examiner. Double jeopardy does apply to offences under the ACC legislation in state and territory and Commonwealth offences.

A person appearing before an ACC examiner as a witness may not refuse to answer a question or produce a document or things on the grounds of self-incrimination, that is, the privilege is abrogated. Subsection 30(5) provides a use immunity for a person who, before answering a question or producing a document or thing, claims that it might tend to incriminate them or make them liable to a penalty. This type of immunity prevents self-incriminating information from being used directly as evidence against the person who provided it. The use immunity applies to criminal proceedings and proceedings for the imposition of a penalty other than confiscation proceedings or proceedings relating to giving false evidence. Derivative use immunity is not provided. This means that self-incriminatory material may still be used to obtain other evidence that would be admissible against the person. The ability to use derivative material from an examination does not automatically compromise a fair trial.

The ACC Act does not include any special provisions relating to questioning of a person facing a current or imminent charge or proceedings. It does not exclude the ACC from questioning a person in such circumstances nor does it explicitly allow it. As outlined separately in the committee consideration section of this digest, a parliamentary committee recommended amendment in 2005 to prevent the ACC from examining a person subject to criminal or confiscation proceedings on matters relevant to those proceedings.

The coercive powers may be considered to interfere with a person accessing a fair trial when the matter they are summoned to is a compulsory inquisitional process of examination instigated by the executive government. This may thus provide a real risk to the administration of justice. The prosecution does not gain an unfair advantage by mere fact that the examination occurs or does not occur, primarily due to the power of the examiner to prevent disclosure and ensure a fair trial for the accused. In other words, there is no real risk in the administration of justice due to the safeguards of the examination, even in the face of a person facing pending criminal charges regarding their answers when the examiner can utilise safeguards against disclosure to prosecuting authorities under section 25A of the ACC Act.

Mere dissemination of evidence to a prosecuting authority is not enough for a trial to be compromised, as it can only apply if it might prejudice a fair trial from occurring and is not enough for a trial to be stayed. To force the accused to confess their guilt or give away information that may provide for their defence or explain their conduct that allegedly supports the charges, depending on the nature of the proceedings, may prejudice a fair trial. Any relief would depend on the breach of direction or of where a direction should have been given and steps taken to cure its effect. The judicial officer could also use their discretion to exclude evidence under sections 90 and/or 138 of the Evidence Act 1995. However, recent cases regarding the use immunity of examination material have had their decisions reserved in the High Court of Australia, which has led judges in other cases to issue temporary stays of prosecutions.

Any dissemination is subject to and overridden by the examiner's non-publication directions, consistent with the decision of Australian Crime Commission v OK [2010] FCAFC 61, where a majority of the Federal Court upheld the legislation. The examiner determines whether confidentiality applies to evidence that is given or the fact that a person is going to give evidence and whether a non-publication direction should be given. The examiner is required to do this when a disclosure might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

The court may seek that evidence directed to be confidential or not published be made available to a person charged with an offence before a federal, state or territory court if it is desirable in the interests of justice. The 'interests of justice' has no definition and can encompass a wide range of factors. When an examination is finished, the examiner must give a record of proceedings and any documentation or things given to the examiner in connection with the examination to the head of the special ACC operational investigation. These confidentiality directions apply also to disclosing notice for summons to obtain documents. The person themselves may be prevented from disclosing the notice other than to their lawyer or permitted person or body.

As outlined in the explanatory memorandum, several recent cases could affect the ACC's use of examination powers. These cases include those which follow. In Regina v Seller; Regina v McCarthy, the New South Wales Court of Criminal Appeal found that the use of evidence derived from examination material in criminal proceedings against the examinee could, in some circumstances, be unfair. In X7 v Australian Crime Commission, a 3 to 2 majority of the High Court found that the ACC Act did not authorise the ACC to examine a person who had been charged with an offence about the subject matter of the charge, referred to here as a post-charge examination. In this case, the majority noted that such an examination would affect the fairness of the examinee's trial and could only be authorised if there were clear words indicating parliament's intention. In Lee No. 1, a 4 to 3 majority of the High Court found that the New South Wales Criminal Assets Recovery Act 1990 authorised the post-charge examination of a person. The majority distinguished the decision in X7 on the basis that the relevant examination occurred as a result of court order. In Lee No. 2, the High Court unanimously found that the New South Wales Crime Commission's unlawful disclosure of the accused's examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial. The examination occurred before the accused was charged with an offence.

According to the explanatory memorandum, these cases have had an impact on the Australian Crime Commission's operations. Following the decision in X7 v Australian Crime Commission, for example, the Australian Crime Commission has stated that it no longer examines persons already charged with an offence if the questioning could touch upon related matters. The decision in X7 touches upon both the motivations of the current amendments and the balancing of rights and public interest in the area of criminal law. X7 v Australian Crime Commission [2013] HCA 29 is one of the more important of the recent cases that not only affected the examination powers of the Australian Crime Commission and ACLEI, but clearly identified the 'principle of legality', which requires that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with 'irresistible clearness'. It is upon this principle and the stated requirements for statutory intent that the bill has been brought forward to clarify the operations of the agency's examinations with the requested irresistible clearness.

The compulsory examination powers of the Australian Crime Commission and ACLEI will be clarified by the amendments proposed in the bill. They will provide the express words and the clear intent that recent decisions have indicated would be required to permit persons who have been charged with an offence to be examined on matters related to the offence. While the amendments would unavoidably alter the process of a trial by limiting an examinee's defence options, they will also introduce measures intended to protect the processes of justice and the right to a fair trial by limiting the use to which examination and derived material may be used. Labor supports law enforcement agencies having the appropriate tools and powers to combat serious and organised crime and law enforcement corruption while ensuring safeguards for fair trials and hearings. The proposed amendments are a proportionate response to provide this balance. I commend the bill to the Senate.