Ian Macdonald (Queensland, Liberal Party) Share this | Hansard source

This bill is a further step by this government to ensure that our police and crime detection agencies have every power at their disposal to address serious and organised crime. We as a government are determined to do what we can as a community to lessen the impact of those involved in serious crime, in organised crime. This bill is part of a series of measures by the government that underlie the basic tenet of ensuring that Australians are safe, that the community is as free as possible from the impact of all sorts of crimes. We only have to look around our country to see some of the results of what serious and organised crime can do to our society. The epidemic of ice—that horrendous drug which seems to be readily available—is the result of work by serious and organised crime. This government will do everything possible to address every element of the work of the crime tsars in our country.

This bill, the Law Enforcement Legislation Amendment (Powers) Bill, clarifies the power of the Australian Crime Commission to conduct compulsory examinations under the Australian Crime Commission Act. Secondly, it clarifies the power of the Integrity Commissioner, supported by the commission, to conduct compulsory hearings under the Law Enforcement Integrity Commissioner Act. Thirdly, it clarifies the uses to which the information and material obtained through the exercise of those compulsory powers may be put.

This bill, like all of those in this field, was sent to the Senate Legal and Constitutional Affairs Legislation Committee, which I chair, for consideration and examination. A number of submissions were made, which the committee looked at very closely. The committee then determined its view on this legislation. I want to thank Senator Polley for the speech she has given in support of the bill. I also thank Senator Collins, a member of the Legal and Constitutional Affairs Legislation Committee, for her support in dealing with this review and for joining the government in the recommendation. I should acknowledge both Senator O'Sullivan and Senator Bilyk, who are also members of that very hardworking committee which has looked into this.

The clarification I spoke of earlier is urgently required following a number of recent court decisions—most notably by the High Court in Lee v The Queen, and in X7 v Australian Crime Commission, and by the New South Wales Court of Appeal in cases referred to as Seller & McCarthy—which raised questions about the scope of those powers as intended by parliament and as expressed in the act.

The Commonwealth Director of Public Prosecutions gave evidence to the committee which suggested that there are at least 11 matters in which those court cases are or may be the subject of a defence challenge to the prosecution, including through temporary and permanent stay applications. This is obviously creating very considerable delays for effective prosecutions and has placed enormous strain on the resources of the Commonwealth Director of Public Prosecutions and those of the investigative agencies. Because case law is necessarily confined by its facts, the judgements arising from those challenges will be at best incrementally clarifying and at worst inconsequential. Amending legislation was the only cure. The Office of the Commonwealth Director of Public Prosecutions said in their evidence that the bill was intended to make it clear that, where it is lawful to do so, pre-charge examination or hearing material given by an accused to an investigating agency may be disclosed to the prosecution even if that material is not directly admissible as evidence against the accused. The CDPP also went on to say that, subject to certain limitations, derivative material that has been lawfully obtained from an examination or hearing may be disclosed to the prosecution, and is admissible in evidence against the examinee. While there may still be issues in identifying precisely what was derived from a particular examination or hearing, this aspect of the bill should assist in reducing the number and scope of the kinds of defence challenges which have arisen in prosecutions since the decisions in Seller & McCarthy.

The bill comprises two schedules, which propose amendments to the Australian Crime Commission Act and to the Law Enforcement Integrity Commissioner Act and make a consequential amendment to the Public Interest Disclosure Act. Schedule 1 of the bill proposes amendments that would affect the Australian Crime Commission's examination powers, while schedule 2 of the bill proposes amendments that would affect the Integrity Commissioner.

In the summary of its submission to the committee, the Australian Commission for Law Enforcement Integrity said that:

Schedule 2 of the Law Enforcement Legislation Amendment (Powers) Bill 2015 focusses on clarifying the Integrity Commissioner's powers to conduct coercive hearings and implements safeguards to ensure that the coercive hearing process and the disclosure of derivative material does not affect the fair trial of a witness. ACLEI welcomes the proposed amendments which will provide greater clarity about the hearing process and use of information obtained through that process.

Some have suggested that this bill considerably expands the powers available, but it should be noted that the bill does not give ACLEI any new coercive powers or expand its current powers. Rather, having regard to the decisions and guidance of the High Court in relation to the fair trial principle, the measures restore, clarify and sustainably restrain the Integrity Commissioner's coercive information-gathering powers to the way they were originally planned. The safeguards are an appropriate balance that retains and supports the operational objectives for which the Australian Commission for Law Enforcement Integrity was established. The bill proposes a number of mechanisms to ensure that hearing powers, including dissemination and derivative use relating to hearing material, do not interfere with a witness's right to a fair trial. These measures include prohibition, in some instances, through to increased judicial oversight and scrutiny.

The committee determined that this bill was a useful tool in the fight by our country against serious and organised crime. I regret to say that the recommendation of my committee was not unanimous. The Greens political party representative on the committee has issued a dissenting report in which the Greens political party recommend that the bill not be passed and that a comprehensive review of the Australian Crime Commission Act be undertaken. They further recommend that the bill should be looked at to ensure that it is within the power of the Commonwealth parliament to enact. In relation to the second matter, clearly the government obtains the very best advice possible on these types of issues, and it is the government's view, according to the evidence presented to my committee, that it is within parliament's power. This is, I suggest, a similar issue to the removal of citizenship that is being spoken about and was referred to earlier in this debate. Again, the government does not bring forward these proposals unless they have full legal oversight and the very best legal advice as to their constitutionality.

The Greens political party's other recommendation, that there be a comprehensive review of the Australian Crime Commission Act, is, again, one of these approaches that we see so often from the Greens political party of, 'Let's not do this.' It is relatively urgent. The Director of Public Prosecutions has said so; the commissioner for law enforcement integrity has said so following recent High Court decisions. According to the evidence, which I have referred to, 11 matters currently before the courts could be delayed unless this sort of supporting legislation is passed. But the Greens political party want to have a review. So we will send this off to the never-never and perhaps in a year or a couple of years we will have a review and we would all argue about it—in which time how much more damage to Australian society would be done by serious and organised crime? As I said at the beginning of my remarks, these bills are all about giving our law enforcement agencies every opportunity, within our notions of justice and fairness, to bring wrongdoers to account.

I, of course, am of an age where, as young people, we used to talk about Nineteen Eighty-Four. It was a book written by someone I should know—a very significant book of the sixties and seventies.