Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Hansard source

I thank the speakers who have contributed to the debate and I thank in particular Senator Collins for outlining the ALP's support for this bill. The Law Enforcement Legislation Amendment (Powers) Bill will ensure that the Australian Crime Commission and the Integrity Commissioner have the powers they need to combat serious and organised crime, foreign fighters and law enforcement corruption. The bill will place the existing powers and practices of the Australian Crime Commission and the Integrity Commissioner on a stronger legislative footing. It will also clarify that the Australian Crime Commission Act allows the Crime Commission to examine people who have been charged with an offence. The bill will also the improve the safeguards in the Australian Crime Commission and Law Enforcement Integrity Commissioner Acts to protect the fair trial of any person questioned, making them clearer and stronger.

I take the opportunity to reply to points raised in the debate by Senator Wright, in particular in relation to why these measures are necessary. These measures will ensure that the ACC and Integrity Commissioner continue to have access to necessary and appropriate questioning powers that allow them to play a vital part in the fight against serious and organised crime, foreign fighters and law enforcement corruption. The powers of the ACC and the Integrity Commissioner to conduct examinations and hearings have been affected by a number of recent cases, including X7 v ACC in 2013 and Lee v R in 2014. In the X7 case, the majority of the High Court found that the Australian Crime Commission Act did not authorise the examination of a person who had been charged with an offence about the subject matter of the charge. In Lee, the High Court unanimously found that the New South Wales Crime Commission's unlawful disclosure of an accused's examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial. These decisions have created significant uncertainty around when the ACC and the Integrity Commissioner can use their coercive questioning powers and disclose information obtained from their use. This bill will respond to these cases by amending the Australian Crime Commission Act and the Law Enforcement Integrity Commissioner Act to place the ACC and Integrity Commissioner's powers on a stronger footing. It will not give the ACC or Integrity Commissioner substantial new powers; rather, it will restore their powers to the way they were originally intended to operate and put them on a clearer legislative footing.

I also address the issue of whether these measures create new powers. The bill does not expand the powers of the ACC or the Integrity Commissioner; rather, it clarifies their powers and practices and places them on a stronger legislative footing. The ACC Act and the LEIC Act have always been intended to authorise post-charge examinations and hearings. The bill will restore the ACC's power to conduct examinations in these circumstances. It will also expressly empower the Integrity Commissioner to conduct post-charge hearings. The acts have also been intended to allow investigators to use examination and hearing material to find admissible evidence for use in prosecutions. The bill will amend the acts so that they specifically provide that the ACC and integrity Commissioner may disclose examination and hearing material to investigators for derivative use.

I also address issues in relation to safeguards, which were also raised in the debate, and most especially how the measures will ensure a person's fair trial. The right to a fair trial is one of the fundamental tenets of our criminal justice system. The ACC and Integrity Commissioner's powers have the capacity to affect the fair trial of a person, particularly if they are questioned post-charge. The bill will make the existing safeguards in the ACC Act and the LEIC Act to protect fair trial rights clearer and stronger. It will do this in a number of ways. Firstly, the bill will more clearly set out the circumstances when an examiner or the Integrity Commissioner is required to issue a direction, particularly where there are ongoing criminal proceedings against the person questioned. An examiner or the Integrity Commissioner must issue a direction to ensure the confidentiality of examination or hearing material and protect a person's safety and fair trial. It is a criminal offence to disclose or use information in contravention of such a direction. Secondly, the bill places specific limits on the circumstances when examination material, hearing material and derivative material can be provided to the prosecution. Where the person questioned has been charged with an offence, an investigator must seek the court's permission to disclose examination or hearing material to the prosecution. Where the examination or hearing occurred after the person was charged with an offence, an investigator must also seek the court's permission to disclose any material derived from the examination or hearing to the prosecution. A court may make an order if it is satisfied that disclosure is in the interests of justice and this would be most likely to occur where the evidence shows that the person is innocent or there are mitigating circumstances. Finally, the bill makes it explicit that courts retain their powers to make all orders necessary to prevent prejudice to the examinee or witness's fair trial. These orders could include refusing to admit evidence, temporarily staying the trial while a new prosecution team is appointed or any other orders that the circumstances require.

I also want to address the issue of what the safeguards are in relation to the conduct of post-charge examinations and hearings. This bill will build on the existing fair trial protections in the ACC Act and the LEIC Act. There are a number of levels of protection. The bill will clarify that an ACC examination can only be used as part of a broader special operation or special investigation. The primary purpose of examinations and hearings is to gather information for the purpose of understanding, disrupting or preventing serious and organised crime and law enforcement corruption. Examinations and hearings can only occur in support of a broader operation or investigation into serious and organised crime activity or a law enforcement corruption issue. In the case of an ACC examination, questioning will need to relate to an operation or investigation that the board has determined is special. An examination or hearing cannot be used solely to bolster the prosecution's case against the person being questioned.

In relation to the need to question: currently, before issuing a summons an examiner must be satisfied that this is reasonable in all the circumstances. Similarly, the Integrity Commissioner must have reasonable grounds to suspect that any evidence given will be relevant to an investigation into a corruption issue. The bill will introduce additional criteria which an examiner and the Integrity Commissioner must consider before summoning a person to attend a post-charge examination or hearing. In particular, the bill will require the ACC examiner to be satisfied that issuing the summons is reasonably necessary for the purpose of the relevant special operation or special investigation, even though the examinee has been charged with an offence. The Integrity Commissioner must also have reasonable grounds to suspect that the evidence, documents or things produced under the summons are necessary for the purpose of the investigation, even though the witness has been charged with an offence.

In relation to disclosure requirements, examinations must be held in private. Hearings are generally held in private. Examiners and the Integrity Commissioner have the power to issue directions to ensure the confidentiality of examination and hearing material. Breaching a direction is a criminal offence. The ACC and the Integrity Commissioner start from the position that a direction should limit disclosure to as few persons as possible. In any case, a direction cannot be disclosed or used if that would prejudice a person's safety or the person's fair trial. The bill will make these requirements clearer. It will also introduce new restrictions on the ability of the ACC, the Integrity Commissioner, and investigators to disclose examination in hearing material to the prosecution. An investigator will need a court order before he or she can disclose post-charge examination or hearing material, or material derived from that material, to the prosecution. The bill does not give new powers to disclose examination or hearing material to investigators or to the prosecution. An agency must already have the ability to do so under existing legislation.

In relation to safeguards, I also want to go to the powers of the court. The bill specifically preserves the powers of courts to make any order necessary to ensure the fair trial of the person questioned; which order is necessary will depend on the circumstances of the case. It could include excluding evidence, ordering a new prosecution team or permanently staying the trial, in the most extreme of cases. Further, the bill retains the existing rules that make examination and hearing material inadmissible in most criminal proceedings against the person questioned.

I also want to address the issue of whether there will be a review of the ACC's power under the ACC Act. Senator Wright raised the question of a review. The ACC Act is currently the subject of an independent review. On 15 May 2015, the government appointed Mr Philip Moss, the former Integrity Commissioner, to review the ACC Act. Under section 61A of the ACC Act, this review must occur every five years. Mr Moss is due to report by 31 October 2015. Amongst other things, Mr Moss will consider the ACC's powers and whether they are appropriate and adapted to the ACC's role in combating serious and organised crime. Mr Moss will consult all relevant stakeholders, including Commonwealth, state and territory ministers on the Inter-Governmental Committee of the Australian Crime Commission; the Parliamentary Joint Committee on Law Enforcement; and ACC board members. In the meantime, these amendments are necessary to ensure that the Australian Crime Commission and the Integrity Commissioner continue to have access to necessary and appropriate questioning powers, which allow them to play a vital part in the fight against serious and organised crime, foreign fighters and law enforcement corruption.

Can I conclude by saying that this bill confirms the powers of the Crime Commission and Integrity Commissioner. It does not expand them. While these are significant powers, they are necessary to counter the growing threat of organised crime and law enforcement corruption. The individuals and groups involved in these activities are sophisticated and adaptive, and are expanding their operations into new markets. Traditional policing methods are an important part of disrupting and dismantling organised crime syndicates. They are also important in catching the corrupt law enforcement officers who enable organised crime to gain a foothold. However, these methods are not enough on their own. To catch the cartel kingpins and to root out corruption, our police must be supported by information obtained under the questioning powers of the Crime Commission and the Integrity Commissioner. This bill will make those powers clearer. It will put the Crime Commission and Integrity Commissioner's collaboration with their partners on a stronger footing, and it will do so in a way that strengthens the mechanisms that protect the fundamental principles of our criminal justice system relating to the right to a fair trial.

The Senate Legal and Constitutional Affairs Legislation Committee has considered the bill and has recommended it be passed. I thank the committee for its work. The Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills have also reported on the bill. I would like to thank all of these committees for their consideration of and comments on the bill. I would like to assure the Senate that—consistent with these reports—the bill contains appropriate powers balanced by appropriate safeguards. The amendments made by this bill are important in ensuring that law enforcement agencies can obtain timely and relevant information, and that they can act on it to protect the Australian community. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.