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

I rise to speak on the Australian Crime Commission Amendment Bill 2007. Can I say at the outset that this bill has been rushed in, which is particularly evident in the preparation—perhaps you could call it that—that has gone into the bill to date.

I will go to the purpose first. The purpose of this bill is to amend the Australian Crime Commission Act 2002:

... to clarify that an Australian Crime Commission (ACC) examiner can record their reasons for issuing a summons or notice to produce before, at the same times as, or as soon as practicable after, the summons or notice has been issued.

It also seeks to protect those summonses already issued from being challenged—that is, these summonses are not invalid merely because the reasons were not recorded prior to their issue. This has arisen, as we are informed by the government, from a court case with the Australian Crime Commission against Brereton in 2007. The judgement was handed down on 23 August 2007, as I understand it.

Smith J said basically that, for a summons to be valid, reasons for issuing the summons must have been issued prior to the time the summons was actually issued. That case dealt with the issue of two subpoenas, and I will come to those shortly, but it does seem to demonstrate a couple of things. One thing is that the government has taken a view that this matter needs to now be progressed urgently, and it has introduced the bill at very short notice. The bill has not had the opportunity of going to a Senate committee, as many of these bills might otherwise. The opposition was given notice of this bill only last night.

I will give some background. The Australian Crime Commission is a Commonwealth statutory body working nationally with other federal, state and territory agencies to counter serious and organised crime. It aims to bring together all arms of intelligence gathering and law enforcement to fight against serious and organised criminal activity. The powers of the ACC are large. The ACC, through an examiner, may summon a person to appear before them at an examination to give evidence and to produce such documents or other things as are referred to in the summons. And, of course, an examiner has a special role under the legislation. An examiner has the power, under the ACC Act, to conduct an examination for the purposes of a special intelligence operation or special investigation. Examiners are independent statutory officers appointed by the Governor-General, and the purpose of an examination is to inform an examiner on matters that may relate to the subject matter of the special intelligence operation or investigation.

The government, as I have said, has rushed this bill to the parliament in response to the Australian Crime Commission v Magistrates’ Court of Victoria (at Melbourne) & Brereton [2007]. Briefly, perhaps it is worthwhile going to the circumstances of that case. Mr Brereton attended but refused to be sworn or make an affirmation of the truthfulness of the evidence. This was a matter that examiners had requested he attend. Brereton was then subsequently charged, as I understand it, under section 30 of the ACC Act regarding that refusal. Section 30 relates to a failure to answer questions. A person who contravenes section 30 subsections (1), (2) or (3):

... is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

It is, in fact, a serious offence. The counsel for Mr Brereton sought to subpoena two lots of documents from the ACC. The first lot was any documents pursuant to section 28(1A) of the Australian Crime Commission Act 2002 which record evidence that the examiner was satisfied that it was reasonable to issue an examination summons. The second lot was any document pursuant to section 28(1A) of the Australian Crime Commission Act 2002 which records the reasoning for the issue of the examination summons on Mr Michael Brereton. The ACC sought to have both subpoenas struck out as an abuse of process on the grounds that they served no legitimate forensic purpose and constituted, in fact, a mere fishing expedition.

To cut to the chase, the magistrate rejected the application to have the subpoenas struck out, but it also transpired during those proceedings that to demand the person to take out an oath or affirmation, say, in the context of the proceedings there must first be a summons properly issued in compliance with the powers pursuant to section 28 of the Australian Crime Commission Act 2002. It is legitimate for a concern to be raised in relation to the exercise of that power, particularly when there is no record within the material as to whether or not the examiner has put his reasons in writing. When that occurs, it may affect the legality of the summons itself. The decision was appealed to the Supreme Court of Victoria, where the Supreme Court upheld the magistrate’s decision. The substance of the bill is to address those circumstances that were raised in the Supreme Court.

The first point is that the bill allows an examiner to execute a summons or notice to produce documents who may not be the same examiner who issued the summons or notice to produce. That in itself does not arise directly from the proceedings, but it is something that I will come back to. The second point is in respect of the matter that is at least on point with the decision. Labor understand that situations in respect of that first point may arise—for example, when there is leave for urgent duties—and where you can imagine that is a requirement that can be sought, and we do not cavil with that provision.

The issue is that the bill allows an examiner to record the reasons for issuing a summons or notice to produce after the summons or notice has actually been issued. It is important to note in that context that the report released in November 2005 of the Parliamentary Joint Committee on the Australian Crime Commission into the Australian Crime Commission Establishment Bill 2002 recommended at recommendation No. 14—and it is worth going to—that:

... the bill be amended to explicitly provide that examiners must satisfy themselves in each case that before they exercise special powers under the Act that it is appropriate and reasonable to do so and that that they indicate in writing the grounds for having such an opinion.

The PJC also noted in the report that the independence of the examiners can be made more evident if the bill is amended to make specific provisions for examiners to assure themselves, before exercising their coercive powers, that it is appropriate and reasonable to do so and that they indicate the grounds for forming such an opinion. Some members of the PJC believed that the reasons should be recorded in writing. Although there was no formal government response to the PJC’s report, the government’s response, if you look, seems to be found in Senator Ian Campbell’s second reading speech on 15 November 2002, which also specifically addresses recommendation 14. He said:

The government agrees to this recommendation. The bill—

that is, the Australian Crime Commission Establishment Bill 2002—

has been amended to provide that examiners must satisfy themselves that it is reasonable in all the circumstances to exercise powers to issue a summons or a notice to produce and will be required to reduce to writing the reasons for taking the decision.

These amendments are outlined in items 9 and 10 of the Australian Crime Commission Establishment Bill 2002 supplementary explanatory memorandum. They do require an examiner to be satisfied that it is reasonable in all the circumstances to issue a summons or notice to produce. The provisions also require the examiner to record in writing the reasons for the issue of the summons. It does seem, though, even at that point that neither Senator Ian Campbell’s second reading speech nor the amendments in the supplementary explanatory memorandum to the 2002 bill unambiguously stated when the reasons in writing to issue a summons or notice to produce should be provided by an examiner.

Clauses 2 and 7 of the bill before us amend sections 28(1A) and 29(1A) of the ACC Act to expressly provide that an examiner may record their reasons for issuing a summons or notice to produce before, at the time or as soon as practicable after the summons or notice has actually been issued. It is concerning to Labor, as it would be to the wider community, that the government does not appear to have had an understanding of how the practice of providing a record of reasons subsequent to the issuing of a summons or notice to produce actually operates within the ACC. In working through this, there are a range of matters that we will take the opportunity in the committee stage to examine, but hopefully it will not take too long this evening. They relate to the issue of how many summonses have been issued; how they have been audited; how they have been checked against the process of ensuring whether the summons was issued with written reasons at, prior or subsequent to the issue of the summons; and how the government has managed that process to date.

Labor understands that there are a significant number of cases that are currently before the courts and that information would also be helpful to understand how many cases can be affected by this decision. It does provide a situation where it appears a legal technicality surrounding the recording of reasons rather than the actual existence of a substantive reason would of itself allow those guilty of serious organised crime to, in fact, escape. That is of concern, especially where these are significant cases or could be potentially significant cases where significant time and effort has been employed. Labor understands why the amendment has been sought.

Clause 5 of schedule 1 ensures that the failure of an examiner to comply with the technical requirements of recording reasons for the issuing of a summons or notice to produce does not affect the validity of such an action. It is important to note, though, that the bill also provides for retrospective operation. Clauses 10 and 12 validate summons and notices to produce retrospectively since the commencement of the ACC Act. Those matters do require a clear demonstration by the government. They can take that opportunity in the closing debate to demonstrate the reasons for retrospectivity, because it is a fundamental rule of law that generally in Westminster systems retrospectivity is not permitted and that most people should be aware of what the law is at the time that they are charged or that it is sought to have the law exercised.

But in this instance, weighing the matter itself, Labor will support the legislation. It does that with the knowledge that the government does have a heavy and clear onus upon it to be able to demonstrate, through these proceedings this evening, that for those matters that have been raised there are clear and unequivocal answers. Labor recognises that in addition, in certain circumstances, urgent action is necessary due to operational requirements that the practice of issuing a summons and then subsequently reasons to be written down can occur. It should really be standard practice that in all circumstances you can form reasons, write those reasons down, issue the summons and at least ensure that you then have a proper audited process.

Given that this is the last week in which parliament is likely to be sitting before a federal election, Labor will agree to facilitate passage, but we will continue to have a look at the operation of this provision. We are not going to provide unqualified support for it. We need to ensure that it does operate as fairly as it is able—that it is in fact a technical hitch that has occurred and that it can be remedied without causing grave injustice to individuals—and that the law itself works properly and appropriately. From a broader perspective, when you examine the issues in detail you can see that the matters raised in the Victorian case do provide some substantive reasoning for the government to have now sought to provide this amendment.

There are a range of issues that go to the matter itself. This matter was ventilated in the decision of the Victorian Supreme Court. The matters I have adverted to were provided with some reasoning within the decision. It does not appear to be—although I am open to correction on this—the substantive point that was made by Justice Smith on the issue, but it does appear to be a subsidiary point or a collateral point that was made. Having said that, what is important to understand is that there are matters that do need to be carefully considered. Page 9 of the decision reads:

… the clear purpose of s 28 (1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an ‘audit trail’. Under s 59 of the ACC Act that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission, constituted under Part III of the ACC Act: ... as is not uncommon with investigative agencies, the Parliament has counter-balanced the secrecy regime it has erected to ensure the effectiveness of the ACC’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee ...

It may also be a matter that should be returned to the ACC parliamentary committee for further monitoring, oversight and examination. It would be encouraging for the minister to advise on that. Justice Smith’s comments seem to have been made in the context of this issue. It is not raised as the primary point, but it is still an important point that the government cannot ignore.

They are not the only stakeholders in this. The Law Council has raised with me legitimate concerns about the impact of the bill. The Law Council suggests and believes that the government intends to pass in haste a bill which is specifically designed to perpetrate an injustice. The government does need to explain how their concerns will be allayed.

Of course, we know that Michael Brereton is currently being prosecuted in Victoria for refusing to be sworn or take an affirmation after he answered a summons to appear before the Australian Crime Commission and we wait to see how his rights will be affected. But we also cannot put aside the issue that these sorts of matters should not be attacked on mere technical grounds. It is important, in the interests of justice, that justice is not only done but seen to be done.

I will take an opportunity during the committee stage to raise some of the more specific matters. I suspect the minister will be able to take it on notice to provide answers if he is not able to do so this evening, but fundamentally Labor has indicated that it will support the legislation.

I remind the minister, in closing, that he does have a statement of expectation from the Australian Crime Commission where he, as the Minister for Justice and Customs, has indicated his expectation of the Australian Crime Commission—and he goes through a range of eight points.

I encourage the minister to also include the issue of ensuring that there is oversight and audit of these types of work, because without a clear audit trail, without clear oversight, without the figures being provided and collated, areas like this can unfortunately creep in. You can see how easily they can be perpetrated over a significant amount of time. The legislation was first introduced in 2002 and was again reviewed in 2006 and the issue has only really come to light as a collateral matter in a Victorian case. That occasionally does happen. In this instance it has happened and it does have serious implications for the ACC’s current procedures. I encourage the minister to advise how he will resolve—(Time expired)

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The government and the chamber will not be surprised to hear that the Democrats are at best a little peeved at the process before us. Certainly I attempted to convey that in my remarks this afternoon when we debated the idea that this bill should be exempt from the cut-off provision. That had little to do with, although it was related to, the complex or controversial nature of this legislation—legislation that the government refers to as dealing with a technical matter. It was partly, and primarily at that stage, because of the process. It is not acceptable in this house as a house of review for senators to receive legislation of a controversial, even urgent, nature—we received it this morning and we received a briefing, for which we are thankful—and then have it exempt from the cut-off provision and debated the same day.

I understood from the debate earlier that Senator Abetz, who was on duty in the chamber, was to endeavour to not delay unnecessarily this process for the benefit of the chamber—not just for the crossbenches, not just for the Democrats, but so that there could be some pretence of consultation and debate within the broader community, namely the legal community. My understanding was that there was going to be some attempt to delay this process. The government may suggest that there may have been a couple of hours—for which we are pathetically grateful and thank you because it did enable us to make some phone calls and consult with relevant authorities and groups—but to deal with this legislation on the same day that it is sighted is not acceptable. I know it is par for the course these days, and I hope that will change regardless of who is in power. This is an unacceptable use of the Senate’s powers, and the government could at least have waited until tomorrow morning.

Having put on record my concerns with the process, I am happy to turn to the substantive nature of the legislation before us. In the time the Democrats have had to be briefed on, analyse and scrutinise this bill—and of course consult with relevant groups in the community—we believe this bill amounts to a government patching up its mistakes; and doing so at the expense of fundamental legal principles and showing absolute contempt for the law-making procedures in this place. The bill, as we have heard, amends the Australian Crime Commission Act 2002. It is clearly a direct response to the decision of Justice Smith in the Victorian Supreme Court in ACC v Brereton [2007]. Its intent is to rectify a perceived deficiency in division 2 of the act, exposed by the court’s decision. As we know, division 2 deals with the coercive powers of the ACC—and these powers are by no means uncontroversial. So, before we even get to the point of debating the legislation and the change before us, we already start with the recognition and from the premise that the current powers and the relevant division are indeed controversial.

Division 2 allows an ACC examiner to compel witnesses to give evidence, including in circumstances where that evidence may be self-incriminating. Of course, various peak legal bodies have consistently opposed the extensive, widely used and wide-ranging coercive powers of the ACC examiners on the basis that they do represent an unjustified abrogation of the privilege against self-incrimination. I am aware of some of the debates that have taken place on this matter, whether through the National Crime Authority committee days or the ACC committee and the relatively new legislation, but these powers are controversial—and they are questioned at best and condemned at worst by a number of groups in the community.

In ACC v Brereton the court ruled that section 28(1A) of the act required an ACC examiner to record in writing the reasons for the issue of a summons or notice to produce, issued under section 2 of the act, prior to the issue of a summons. Indeed, counsel acting for the ACC in that case was up-front to the court. He conceded that the existence of a document regarding the examiner’s reasons for issuing a summons was a condition precedent to the issue of the summons—in other words, a summons could not be issued unless the ACC had first justified its reasons for doing so. At this point, it is interesting to reflect on what the judge hearing the matter said. His Honour Justice Smith said:

The preconditions are no doubt specified because of the significant in-roads made to the right to silence and the need to ensure that the power is properly exercised.

The bill proposes to amend the act such that the reasons for the issue of the summons, required to be recorded under section 28(1A), will now be able to be provided as soon as practicable after the issue of the notice. The government is telling us that this amendment is justified and necessary because the situation as it stands is problematic where a summons has to be issued urgently or where a large number of summonses may be issued at one time. The government says, therefore, that this is a technical amendment. We have heard this as a justification and we have seen this as a justification, and I am sure it will be put forward again. But a lot of groups do not agree that this is merely technical—and, I tell you what, the Australian Democrats beg to differ on that point. I consider that the explanatory memorandum is another in a long line of explanatory memoranda which are arguably misleading in a similar manner.

It is clear from Justice Smith’s reasoning that he did not view as a perfunctory exercise the requirement for an ACC examiner to issue reasons. On the contrary, Justice Smith considered that reasons are a necessary and substantive requirement of the decision-making process undertaken by the examiner. I am sure that when Justice Smith made this finding he did not envisage a legislative fix to the problem that simply removed the protective element.

I have discussed the extraordinary nature of the ACC’s coercive powers to compel a person to produce documents, to attend an examination and to answer questions even when the information sought may be self-incriminating; but, in addition to this, the ACC’s extraordinary powers are exercised, as we know, behind a veil of secrecy. We should expect in these circumstances that the power is exercised according to the letter of the law. As the Law Council puts it:

Strict compliance with the law is the least we can expect from enforcement agencies exercising extraordinary powers. Parliament would send a very dangerous message if it rewarded agencies which ignore the requirements of the law by passing retrospective legislation which not only shields the offending agency from the consequences of their past noncompliance but reduces the safeguards they must comply with in the future.

That is from the Law Council, the peak representative body for the legal profession in this country. They have put out a statement today with the same—or arguably much shorter—level of notice as the rest of us. They are not impressed by this legislation.

Section 28(1A) of the act contains dual requirements which are inherently linked: (a) that an examiner only issue a summons if they are satisfied that it is necessary to do so and (b) that they record their reasons in writing. The second item is not a mere technicality as the government suggests—far from it. The requirements operate together as a safeguard against the misuse of the coercive powers and to deliver a degree of tangible accountability each time the powers are exercised. After the Brereton decision, the government was caught between a rock and a hard place. It is apparent that for some reason the ACC decided that it did not need to record its reasons—at least prior to any summonses or notices to produce being issued. This was despite the wording of section 28(1A) as it stands, which I think pretty clearly states that written reasons should be recorded.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senator Johnston interjecting—

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I am not sure what the minister’s interjection was, but maybe he will respond on that process. If people, especially the government, are frustrated by this debate, they have absolutely nothing on the rest of us. We have had less than 24 hours to look at, scrutinise, analyse, debate, potentially amend and pass this legislation—and then it is going to committee. If we are going to embrace retrospectivity, we may as well embrace it for all things and have retrospective committee references for retrospective legislation. It is extraordinary.

The result, the government says, is that a raft of evidence obtained under the ACC’s coercive powers is now subject to legal challenge. We are not dismissing that; we are not disputing that. We are not suggesting that that is not an important thing, but it would have been nice if the government had ensured that people had time to digest that and to look at the myriad of potential solutions available to the government or at least to look at the myriad of fundamental implications as a consequence of going down this particular legislative path. But what does the government do? It attempts to legislate retrospectively to remedy the ACC’s problems and incompetence. That is a big deal in this place, and I am sure that most senators, in dealing with a range of legislation—let alone legislation that deals with issues of criminality—find that legislation dealing with retrospectivity is controversial generally. And, specifically in this case, you bet it is controversial. The effect will be that any summonses or notices issued prior to the bill being enacted and prior to the decision in ACC v Brereton will be valid. We understand that there are up to 30 prosecutions currently on foot. I am sure that the government will outline the issues for us in those prosecutions involving evidence obtained in accordance with division 2 and those that will be affected by the bill.

Again, the Democrats do not underestimate some of the issues at stake here. There is not just the issue of those prosecutions or other cases that may be pending but also issues relating to fundamental legal principles that are potentially breached as a consequence of this legislation. As the Law Council has stated, this will have the effect of suddenly making valid summonses which were previously invalid. 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. That is what the Law Council is saying. So I ask the government to respond to those particular accusations, because the situation is quite dire. The right to certainty before the law and to not be subject to retrospective criminal sanction is a fundamental legal right. It is actually a basic human right. Article 7 of the European Convention on Human Rights provides that no-one shall be held guilty of a penal offence made so retrospectively. Article 15 of the International Covenant on Civil and Political Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

My opposition to this legislation is obviously evident, but I am not alone. I am not alone in having concerns about the process and the policy that we are debating today. I think it was summed up well today by the Law Council when they commented:

The Law Council believes that the Australian Crime Commission Amendment Bill, which the government intends to pass in haste, is specifically designed to perpetuate an injustice. The government is inviting the parliament to be complicit in this act. The parliament should reject the proposals.

The Democrats agree with this sentiment. The bill will abrogate a fundamental human right—that is, to not be subject to retrospective criminal sanction. If that is acceptable, if that is the new mode or the new acceptable form in this place, then we need to know about it. Is this standard across the board or is this just in relation to the particular powers—and the arguably coercive powers, at that—of the ACC?

Clearly for some it is not that serious. The bill deals with very controversial provisions which abrogate the right to remain silent, yet we have been given a day to consider it. Moreover, the bill removes safeguards which are not only procedural but form part of the substantive process in an examiner being satisfied that a summons or notice to produce ought to be issued, thus invoking the jurisdiction of the ACC, to use its coercive powers. I do acknowledge that the government, including the minister’s office, and the ACC have made attempts to explain their understanding of the purported urgency of the legislation before us. And, my goodness, of course we acknowledge that the Crime Commission has an incredibly tough time in combating organised crime and without doubt, in some cases, the powers that it has have been and are justified. This is not about the Democrats going soft on crime or wanting people to get away with things. This is us doing our job as legislators in terms of debating legislation in a way that ensures proper time for scrutiny and reflection.

I acknowledge that the government, and certainly the minister’s office today, were very happy to provide briefings. Thank you for that; it was very helpful. But in terms of the government’s role—the government of the day doing this in such a hasty manner—we need more justification. I believe there has been a pattern in this place of government members on occasion paying lip service to the scrutinising role of this particular chamber. There are times when it is more evident than others. Having less than 24 hours to deal with legislation that has wide-ranging impacts, is such a highly contentious piece of law and is arguably offensive to principled sections of law means that on a day like today the Senate is not doing its job.

I realise this debate has obviously been brought on quickly. There are not many speakers on the list—I think there are three of us from non-government parties. I am assuming the intention is to move into the committee stage immediately after this, so there will be minimal time. I note that, in his comments, Senator Ludwig indicated that on behalf the opposition he would be asking the government some questions, some of which he expected they would take on notice. I am assuming Senator Ludwig is confident of getting answers tonight, because, given the bill will go through tonight, when he says ‘take questions on notice’ I am not quite sure of the time frame he is allowing.

In conclusion, I do not doubt the importance of this bill. I do not doubt the government believes that there is urgency and that there is a matter which needs to be resolved. I do doubt that this is merely technical. I do believe this has broad-ranging implications and I really think the government could have acceded to our request not to give us a token hour or two in relation to this legislation. It pretty much stayed in the same place on the Notice Paper, let’s face it—it has not moved up. They could have given us another night. I wonder what consultations have taken place between the government, relevant authorities and the affected communities—and by that I mean the legal sector. I wonder what discussions and negotiations have taken place, because my reading of the Law Council’s attitude is that they have nothing but contempt for this process and the legislation before us. On those grounds, the Democrats will not be supporting the legislation.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Mr Acting Deputy President, I want to correct the record. There is not a ‘token hour or two’; it is totally dependent on how many speakers there are on the bill.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I want to echo Senator Stott Despoja’s comments in relation to the process by which we are dealing with this legislation. The Australian Crime Commission’s role is to address serious and organised crime in Australia. Over time it has acquired extremely draconian coercive powers that have eroded fundamental legal principles such as the right to silence and the privilege against self-incrimination. The Australian Crime Commission’s special coercive powers include the ability to summons a person to an examination to give evidence under oath or affirmation and the power to obtain documents. Penalties for failing to comply with the Australian Crime Commission’s coercive powers include fines and imprisonment. It is this power to issue summonses, requiring people to answer questions with a limited right to silence and no privilege against self-incrimination, that this bill seeks to expand.

The Australian Crime Commission Amendment Bill 2007, which the government is seeking to rush through parliament, will remove one of the few mechanisms of accountability over the use of the Australian Crime Commission’s coercive powers. The bill will operate respectively to validate any and all summonses that have been issued unlawfully by the Australian Crime Commission. It will also mean that any future summons issued by Crime Commission examiners will not have to conform to the existing accountability for the issuing of summonses. The impetus for this extraordinary legislation was the recent case before the Victorian Supreme Court that others have referred to. The case was part of an ongoing legal proceeding that arose from Operation Wickenby, which is part of a very large investigation and prosecution of alleged tax evasion associated with various participants in the media, entertainment and sporting industries.

Before I canvass the issues that arose in that case and that arise in this bill, I want to make clear that the Australian Greens are very supportive of the work of the tax office and others to detect, to prevent and to punish tax evasion. Integrity of the tax system is crucial to ensuring the government’s capacity to provide services and programs for all Australians. However, that is not the issue before the Senate today. We are considering what powers and what limitations on those powers are proper for the Australian Crime Commission. I make that point because the government have sought to justify this bill primarily by reference to the particular high-profile tax evasion case, which they say may be hampered because of the failure to follow the existing forms of accountability set out in the Australian Crime Commission Act. It is not and should not be the role of this parliament to rush through special legislation to make up for the shortcomings or failings of investigators in particular tax evasion cases.

The government says that the bill will provide that a summons on notice will not be invalid merely because it fails to comply with technical requirements of the act. These so-called technical requirements are the need for a Crime Commission examiner to record reasons before issuing a summons. The recording of reasons is not, as the government says, merely technical but one of the few mechanisms of accountability that there is over the Crime Commission’s coercive powers. The Victorian Supreme Court pointed this out in its judgement in the Brereton case, quoting the decision of the magistrate in the original hearing, in which His Honour said that the requirement to record reasons:

... is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an ‘audit trail’.

Under section 59 of the Australian Crime Commission Act, that record is potentially available on request to the portfolio minister and to the Parliamentary Joint Committee on the Australian Crime Commission, constituted under part III of the Australian Crime Commission Act.

As is not uncommon with investigative agencies, the parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the Australian Crime Commission’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee. The court then went on to say that the production of such records is also important because the question of access to a record of reasons might occur:

... in the context of a criminal trial where an issue is raised as to satisfaction of a precondition to a valid examination summons and the document recording the reasons is sought using a subpoena.

That is the present context and is very different. There is every reason to allow the usual trial procedures to operate. There would be little comfort to an accused person, sitting in jail after sentence, to find out subsequently, through the actions of a parliamentary committee, that the conviction is invalid.

The government also seeks to justify this bill by claiming that the existing act does not require the record of reasons for the issuing of the summons to be made prior to the issuing of the summons. This is a tortured argument given that, if the government thought that was the case, why is the bill being brought forward? In any event, this is clearly not the view of the Victorian Supreme Court or, indeed, counsel for the Australian Crime Commission in the Brereton case. His Honour found:

There was, as Counsel for the plaintiff properly conceded in this proceeding, a condition precedent to the validity of the issuing of the examination summons—namely, the existence of a document recording the examiner’s reasons for issuing the examination summons, such document to be in existence before the examination summons was issued.

His Honour then went on to say:

The pre-conditions—

that is, the production of a record of reasons—

are no doubt specified because of the significant in-roads made to the right to silence and the need to ensure that the power is properly exercised.

Contrary to what the government is saying in this place today, the courts clearly believe that the present act requires a record of reasons to be produced before a summons is issued. Let us then be clear about why the government is bringing forward this bill. It is doing so because it wants to override the views of the Victorian Supreme Court and the existing accountability under the act and further loosen the limits on the coercive powers of the Australian Crime Commission. It is doing so retrospectively because it seems clear that at least some of the warrants issued by the Australian Crime Commission have not been issued in the manner that was required by law, which, as the court has said, requires a record of reasons to be made prior to the issuing of the summons.

The Australian Greens do not support this bill. We do not think this important mechanism of accountability should be removed and we do not believe that it should be removed retrospectively. It is not the first time in recent history that the government has brought forward ad hoc amendments to the Australian Crime Commission Act to reduce accountability. Most recently, for example, it used the pretext of the intervention in the Northern Territory to lengthen the tenure of Australian Crime Commission examiners. This bill should not be rushed through the parliament at the end of this sitting, on the eve of an election. It is a further example of the cavalier attitude of the government to fundamental rights and liberties in this country, and it is further evidence of why we need a bill of rights in this country. The Greens will not support this bill.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I thank members for their contributions to this debate. The Australian Crime Commission Amendment Bill 2007 clarifies that the Australian Crime Commission examiner can record their reasons for issuing a summons or notice to produce before, at the same time or as soon as practicable after the summons or notice has been issued. I say that to clarify very clearly that section 28(1A) of the act has a provision which says:

Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so.

The section goes on to say:

The examiner must also record in writing the reasons for the issue of the summons.

The technical issue at stake here in this amendment is when—that is, when the examiner should record in writing the reasons for the issue of the summons. We have recently had His Honour Mr Smith in the Victorian Court of Appeal stating that he should do that before the issue of the summons. Nowhere in the section is that made clear.

It is not practicable to await a parliamentary committee inquiry into the Australian Crime Commission Bill before proceeding to debate and passage. As I have said, as a result of the findings of Justice Smith in the Brereton matter, there is a pressing risk of collateral challenge to the validity of quite a large number of summonses and notices issued by the Australian Crime Commission examiners. Significant prosecutions could be derailed or delayed, based on challenges to the validity of summonses and notices if we do not make these amendments now.

The government does support, as I support, having the maximum degree of parliamentary review of amendments of this kind that is possible. I will therefore write to the chair of the Parliamentary Joint Committee on the Australian Crime Commission to invite the committee to review these amendments, albeit after the event. If deficiency is found or the degree of protection, safeguards, checks and balances is not found to be sufficient, the government will then consider those findings and seek to address those points raised, whilst seeking to preserve the integrity of the intent of the legislation.

I also briefly mention an issue that I feel strongly about and that, of course, is retrospectivity. I note that some provisions of this bill apply retrospectively to provide that the summonses or notices to produce issued after the commencement of the ACC Act but prior to the commencement of the bill are not invalid where reasons were recorded subsequent to their issue. I understand that the retrospective application of these provisions could be detrimental to persons who might otherwise have had scope to challenge the validity of the summonses or notice to produce. Those persons would, no doubt, in the practical reality of defending their position, instruct their counsel to take proceedings in line with the precedents set out in Brereton. They would incur considerable cost. They would incur expense and time, and, indeed, court time would be taken in the pursuit of this recently elicited precedent. We seek to stop them doing that whilst also providing for the integrity, as I say, of the intent behind these provisions.

The government considers, however, that through amending this act at this time this is a just and appropriate outcome. It does not consider that a failure to record reasons for issuing a summons or notice prior to the issue of the summons or notice should give a person who would otherwise have been convicted of an offence the technical grounds to challenge the admissibility of evidence and thereby escape conviction. Prosecutions need to turn on facts and evidence, and I for one, in the scope of these provisions, do not believe that they should turn on matters of a technical nature. We seek to clarify an apparently equivocal provision because it has now been construed and I am respectful of His Honour’s decision.

We seek to clarify that so that the Crime Commission can move forward with confidence and, indeed, so that those people who may come under the purview of this legislation as citizens will know precisely where they stand. Need I say that the government will always be vigilant. Where there is a technical issue that seeks to allow for a defence issue to be raised on the basis of a misinterpretation, vagueness or an uncertainty within the legislation, the government in these circumstances will be ready to act.

Question agreed to.

Bill read a second time.