Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

On behalf of Senator Wright, the Chair of the Legal and Constitutional Affairs References Committee, I present the report of the committee on the Australian Federal Police, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Waters, do you wish to speak to the motion?

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I would prefer it if the chair of the committee was able to speak, so I would like to reserve her right to do so.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

That is fine. I am aware there are other speakers.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

Thank you, Mr Deputy President, and perhaps by the time I am finished speaking Senator Wright will have come down and we can hear from the chair. The Proceeds of Crime Act 2002 provides a scheme to trace Australian confiscated proceeds and benefits gained from Commonwealth indictable offences, foreign indictable offences and certain offences against state and territory law. Under the Proceeds of Crime Act any financial benefit that a criminal derives from publishing or otherwise selling the story of his or her criminal exploits can be confiscated. Literary proceeds orders do not prevent a person from telling his or her story to the media. These provisions do not interfere with freedom of speech—only with deriving financial benefit from criminal activity.

Literary proceeds action under this act had previously been taken against Schapelle Corby in March 2009. The AFP had been investigating whether Schapelle Corby could be pursued under the literary provisions of the Proceeds of Crime Act 2002. To assist in determining whether there was action to be taken, the AFP required Channel 7 to provide material to them within the agreed time frame of Friday, 14 February 2014. The material provided revealed that there were further relevant documents which had not been provided. The AFP then wrote to Channel 7 seeking full compliance with their request, and Channel 7 provided some further material but not necessarily all of the relevant documents. It was at this point that the AFP obtained a search warrant for multiple premises to search for the relevant documents. Although the AFP discontinued this investigation when the circumstances of the matter changed, this does not mean necessarily that the original concerns which initiated the investigation were not well founded—though that is one of the things that is disputed.

I will go back to the start of this inquiry. The coalition opposed this inquiry. We believe that existing oversight ensures that appropriate thresholds for production orders and search warrants are met. Oversight is provided by internal AFP governance documents and independently by the judiciary. Internal AFP governance instruments provide guidance on the appropriate stage to seek search warrants. The magistrate exercises judicial oversight by issuing production orders and search warrants under the Proceeds of Crime Act 2002.

The parameters for issuing search warrants are strictly limited. The magistrate must be satisfied by information on oath that there are reasonable grounds to suspect that evidential material or tainted property would be on the premises within the next 72 hours. As of 6 March 2014, matters relating to the Seven West warrant and production orders were before the courts, so that litigation should have been allowed to run its course before considering referral. Likewise, the actions of some AFP officers were the subject of internal investigations and investigations by the Australian Commission for Law Enforcement Integrity, which should also have been allowed to run their course.

Subsequent to the referral of this matter to the Legal and Constitutional Affairs Committee on 6 March 2014, relevant proceedings were heard by the Federal Court. On 7 March 2014 in the Federal Court, Her Honour Justice Jagot, heard proceedings by Channel 7 and Mercedes Corby seeking a judicial review relating to the issuing of a search warrant. On 26 March 2014, the Federal Court found in favour of the applicants. Being operationally independent of the government, the AFP has stated that they will consider the judgement in full before making a decision on whether to appeal. On 22 February, the AFP confirmed there would be routine review of the actions taken during this matter including consideration of the decisions of the Federal Court.

It is important that we do not unduly impede the operational capacity of the AFP. There is a fine balance between ensuring the AFP can carry out their duties and ensuring we do protect the rights of individuals. Unfortunately, in this particular instance, it has to be acknowledged that the AFP did make mistakes in regard to the commissioning of a search warrant, and I do believe it is important that they look at ways to ensure their systems and protocols are robust to avoid similar mistakes being made in the future. However, the AFP undertakes important work. The officers of the Australian Federal Police put in tireless work to protect our community. While mistakes were made, I do not wish for this to unduly reflect upon the reputation of the AFP. I want to take this brief opportunity to reaffirm my support for the AFP and their dedication to our community.

Journalists and media organisations also play an important role in our society. Seven West Media in their submission raised a number of concerns and it should be acknowledged that it is important that, as a media organisation, they defend the needs of their journalists to protect their sources. It is important that search warrants are only issued in line with the law. Seven West Media made a number of reasonable points in their evidence to the committee. The execution of searches can be distressful to the people involved, so it is important that that is taken into account when search warrants are being issued. However, taking into consideration all of these factors, some of the recommendations provided in this report are not supported by coalition senators, as they may unduly impede the operational capacity of the AFP.

Coalition members of the committee voted against the inclusion of some of the recommendations, and I will provide some detail on those decisions. Coalition members do not support recommendation 5, which seeks to have amendments made to the Proceeds of Crime Act 2002. The purpose of the amendments is to ensure that the police are asked to seek a production order before a search warrant is given. Unfortunately, investigations cannot always travel so slowly and the initial production order could not only slow down an important investigation but also unnecessarily alert a person to the existence of such an investigation. This is an area which relies heavily upon the operational expertise of the AFP. They are in the best position, in each individual case, to judge whether a production order or a search warrant is the best first step.

Also, coalition senators do not support recommendations 7, 8 and 9 because we do not believe that special provision should be created for a specific group. All of these recommendations seek to provide separate protocols or undertakings when the police are dealing with media organisations.

We believe that equality before the law is an important principle in our legal system and that we need to be very careful about creating special classes of people for separate treatment under the law. We do not believe that the threshold in this case has been met for making some of the changes that have been suggested by the committee.

As I discussed earlier, it is a balancing act between protecting the rights of individuals and ensuring that police have the operational capacity to carry out their duties. We believe that providing a separate spectrum of rights for media organisations could create an imbalance.

I will briefly touch on recommendation 6. This recommendation states:

The committee recommends that the Commonwealth government investigates options for introducing enforceable undertakings powers as an option available to law enforcement agencies during literary proceeds investigations.

Coalition senators did not oppose this recommendation. But we do believe that very careful consideration needs to be given before this recommendation is fully followed through.

I, together with my coalition senators, did support recommendation 4. It recommends that the Commonwealth government investigates options for distinguishing literary proceeds matters from other matters under the Proceeds of Crime Act 2002, with particular consideration given to retaining literary proceeds matters within the PoC Act andamending the act to clearly distinguish between literary proceeds matters and other proceeds of crime matters or removing literary proceeds matters from the PoC Act altogether and creating stand-alone legislation to deal with literary proceeds matters.

I think that this may well be an important part of the way forward. We are dealing here with a piece of legislation that brings a whole range of actors together. In this case, Seven West has raised, I believe, legitimate concerns about the way this matter was conducted. The courts have agreed with Seven West. I think the AFP have acknowledged that mistakes were made and it is important that they review their procedures. But as we look forward to what kind of legislative response we might have, I think it is important to get a balance and that is what coalition senators have sought to do here.

Recommendation 4, in particular, may have some merit in extracting literary proceeds matters from the PoC Act altogether and creating stand-alone legislation, which could take account of the fact that it is a very different thing dealing with legitimate, well-regarded media organisations and, in some cases, criminal gangs and their associates. That is the balancing act that needs to be struck and it is the balance that coalition senators think needs to occur.

I would like to conclude by thanking the committee secretariat for their work on the inquiry, all of those who made submissions and also Sam Findlay for his work in putting some of these words together. I seek leave to continue my remarks.

Leave granted; debate adjourned.