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

I will try and confine my remarks to eliciting some response to the issues at hand rather than going to the details of substantive submissions. Is the minister able to say how many matters are affected by the invalidity? Can those summonses that have been issued which would fall to this technicality if the legislation was not passed be ascertained? The second part of that—and I will try and encapsulate the broader issues as well—is indicated in the Law Council’s submission, which states, ‘Also, 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.’

Is there also a class of individuals who have failed to comply with an invalid summons and could be attacked for the technical reasons that have been highlighted by His Honour Smith? How do the processes of the ACC operate in terms of the examiner dealing with the issue of the summons? Perhaps the minister could confirm whether the examiner forms the reason and then, by and large, takes the opportunity of issuing the summons because the operations might be live, happening or unfolding, and then, subsequently or contemporaneously to the issue of the summons, he prepares his written reasons—the written record. Prior to an examination those written reasons would be available and could be challenged by a counsel for the person who is the subject of the summons for a range of reasons. Of course, the government could argue public interest immunity and the like.

Are statistics available which demonstrate that the examiner might do it prior to the summons, at the time of the summons or after the summons? If none of those statistics are kept, is there an intention to ensure that there is an audit trail under the proposed new regime? What you are now suggesting is that those three distinct possibilities will be available to the examiner in the new regime—that is, that the record be made before the issue of the summons, at the same time as the issue of the summons or as soon as practicable after the issue of the summons.

In addition to that, what does ‘as soon as practicable after the issue of the summons’ mean? Will another problem be created in determining when that point is? Can it be collaterally attacked on the basis of a technicality with regard to the meaning of as soon as practicable after the issue of the summons? I know it has been difficult to determine the length of time, but it is likely that at some point it will be outside as soon as practicable. You could end up with another opportunity for a collateral attack in respect of the summons, in that it may be more than a practicable time afterwards. Of course, that would turn on the facts and issues of the case itself. It concerns me that another technical point might open up down the track. When you read the original section 28(1A) and go back and look at the records, you will find that it did not seem to seize the issue of when the examiner for the ACC should reduce the reasons that they had already formed to writing—whether it was an oversight or whether in fact it was already in their mind how the process would work and nobody sought to turn their mind to it. I will pause at that point and give the minister an opportunity to answer.

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

In excess of 600 summonses have been issued that would be subject to section 28(1A). However, of course, arising from those there are potentially approximately only 30 prosecutions. I am advised that in almost all cases there are reasons written shortly after the affirmation of the issue of the summons. Reasonably practicable in terms of the time to provide those reasons is a matter for the court. The simple reason for that is that in each of these circumstances there may be different issues to deal with, different reasons, different urgencies and different contexts. Indeed, what in one case may be almost contemporaneous for reasons which would be justifiable may be some long time or some short time after the issue of the summons. As soon as practicable after the issue of the summons is a matter for determination and adjudication by the court, should there be a challenge.

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

The other finer point went to whether that class—you indicated there were 30 prosecutions on foot—is those who had failed to comply with a summons. In other words, if we put Mr Brereton in a class of his own, are there any individuals who have failed during that period to comply with the summons where the reasons were then reduced to writing after the summons? That may not be able to be ascertained, but it might be. I will see whether the minister can shed light on that.

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

I am told that all of those summonses have been attended by circumstances of a summons with reasons at some short time afterwards, although there will be some that have been at the same time. But the vast majority—the 600—have yielded only 30 prosecutions that are currently on foot.

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

Therefore failure to comply?

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

No, they are not failure to comply.

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

I thought the 30 prosecutions were prosecutions at large on matters they are in strife about. The point I am trying to ascertain is: how many, if any, of the 600—relate to people who have failed to comply with a summons and have then been charged with failure to comply with the summons? In other words, they have then suffered either a 200-unit penalty or a five-year term, as the case may be, and been prosecuted for failing to answer the question.

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

There are very few prosecutions for failure to comply. The 30 are the substantial cases wherein the summonses, with the annotated reasons attached a short time after, have yielded a superior prosecution; that is, charges flowing with respect to those 30 major matters. But there have been in excess of 600 summonses executed.

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

That is what I was alluding to earlier in respect of taking it on notice, and of course that information could be passed to the Parliamentary Joint Committee on the Australian Crime Commission when it does look at this. You can take this on notice, but in terms of those matters that the Law Council and I have raised, while I understand the number of persons is relatively small, how many people fit into that class where they have failed to answer the summons—

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

Refused.

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

I should say ‘refused to answer the summons’ and have therefore been subsequently prosecuted for refusing to answer the summons in some way, shape or form and have suffered a penalty?

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

There are not very many: approximately, but do not hold us to it, half-a-dozen would have refused and would have the benefit of this particular case—or may have the benefit; I do not know, but may have the benefit—and would have a live issue to explore in terms of justifying the refusal on the basis of this case.

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

On a technical ground?

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

Yes.

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

It would turn on the factual matrix of the case if it was pursued. The other matter goes to the advice provided to other states and territories. I understand the ACC is a body that does liaise with various states and territories in its operations. Have the states and territories been advised of this issue? What is their response to date?

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

There has not been a response to date because I have not written to them, but I will shortly.

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

As I understand it, the states and territories have complementary legislation in their respective states and territories. As such, is the minister able to identify whether the same issue arises within those states and territories and whether or not the minister intends to take action to assist the states or to find out what the states will do? That is also a matter that I would expect the parliamentary joint committee could also monitor.

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

We are not aware of any matters in the states and territories that are directly on point with respect to the problem here but we will write to them. We will seek that they amend and have harmonious legislation to our legislation following this amendment.

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

A quick query on the process relating to the joint committee: I understand that the minister will write to the parliamentary joint committee in order to facilitate this process but is there a time frame that the minister envisages? One of the reasons we are dealing with this legislation and other legislation so quickly is the fact that this could be our last sitting week for the parliament, so obviously that has some impact on the available time to investigate these matters.

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

I anticipate writing to the committee if not this week then early next week. What the committee does is for the committee. They will either reject my letter and say they are perfectly happy, or they will take it and conduct an inquiry. It is a matter for the committee as to whether or not it is a narrow inquiry. I would anticipate the committee would report possibly in the New Year.

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

Is the minister able to explain the current auditing procedures for the 600-odd summonses that have been issued and in particular how the ACC ensure that the warrants are tracked in the process? It struck me that, with the way the summonses are issued, you could track the summons itself. I would like to know whether the ACC track when the written reasons are reduced, published and dated and whether that is prior to an examination taking place. Or can the minister rule out that at no point an examination takes place before the reasons are reduced to writing?

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

They did not centrally review the matters with respect to those details prior to this case; they do now.

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

Thank you, Minister, for that answer. So, as I understand it—I did not want to put words in the department’s mouth—there is also no record as to whether the reasons were reduced to writing prior to the examination. Or can you say that the ACC can confidently say that, for every one of the examinations by an examiner that took place, the reasons were already written down so that they were there for the usual challenges, I guess, based on the reasons themselves, subject of course to the matters being argued or brought before a court in respect of some matter about the reasons themselves?

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

The ACC is reviewing that with respect to ascertaining exactly what has been the historical disposition and context of that, obviously initiated by the case.

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

The reason I also put that on the record is so that the Parliamentary Joint Committee on the Australian Crime Commission can take that and also examine that with the ACC at some point so that these issues are at least ventilated more clearly and, if remedial action needs to be taken, it can be taken effectively. I did not want to second-guess what that outcome might be or what the current situation is, so I put that in a frame that asked the question rather than made an allegation about these issues.

Of course, the other matter I think it is important to highlight is that this amendment does not affect Sankey v Whitlam—and I put this as a question for the minister—in the sense that the challenge that could be mounted that goes to whether or not written reasons are made available is still a large issue. In other words, it does not put it beyond the challenge of parties to then seek to argue that the reasons should be made available to the parties and tested in some way against the public interest.

While the minister is taking advice on that, I can go to the particular matter in more detail. In Alister v R, a High Court case, that went to the general principle:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer ... as follows: ‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’

In short, this does not put beyond challenge those issues that someone may want to ventilate about the written reasons that are provided. Of course, it is still open for the government to argue public interest immunity and all those other matters, but it is about ensuring that this only deals with the technical matter.

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

The amendment at the end, subsection (8), which sets out that ‘a failure to comply with any of the provisions does not affect the validity of a summons’, answers the question. It is still open for a defendant or prospective defendant, as the case may be, to raise the threshold issue and explore the reasons, but a failure to comply with the provisions of (1A) after the passing of the bill will not render the summons ineffective or invalid—in other words vitiate it—by that failure, so that the provisions wherein a person is entitled to explore the legal veracity of the various instruments are there, but a failure to comply, in this instance, will not invalidate the summons.

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

So, as I understand it, the right still exists. This is simply a matter that goes not to the substance of the written reasons but to the issue of not invalidating the provision because they are not written.

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

It does not limit what a defendant can try and get hold of. But, if there is no compliance, the summons is still valid.

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

I think it is helpful in this debate to ensure that those sorts of matters are clear—that we are not intruding in respect of the argument that was raised in Sankey v Whitlam, in that the public interest still remains as a balance between that which might be available and that which might not be available to these types of matters, and in that this amendment is narrowly cast to fix what has been quite a long issue. The question which also raises itself, which should be asked, is: when did this first come to light, and when did the ACC—that is, the Australian Crime Commission—advise the minister of the issue?

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

It obviously came to light when the magistrate refused to strike out the subpoena for the reasons. So you will note that a prerogative writ was issued to the single judge of the Victorian Court of Appeal alleging error on the face of the record with respect to the adjudication by His Worship—now maybe His Honour; I do not know whether they have changed that. But the point is that the amendment is narrowly cast. It is a technical amendment and indeed, as some senators have commented in the speeches in the debate on the second reading, it is not as broad as they have anticipated, with great respect.

Bill agreed to.

Bill reported without amendment; report adopted.