Marise Payne (NSW, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

LAW ENFORCEMENT LEGISLATION AMENDMENT (POWERS) BILL 2015

This bill contains measures to clarify the questioning powers of the Australian Crime Commission and the Integrity Commissioner.

This bill will help to ensure that the Crime Commission, Integrity Commissioner and Australian Commission for Law Enforcement Integrity have access to necessary and appropriate powers so that they can play their part in the fight against serious and organised crime, foreign fighters and law enforcement corruption.

At the same time, this bill will strengthen checks and safeguards on examinations and hearings, to strike an appropriate balance between giving law enforcement and integrity agencies the powers they need to keep our community safe, and the need to preserve the fundamental right to a fair trial.

Background to examination and hearing powers

Examinations and hearings are crucial to the operations of the Crime Commission and Integrity Commissioner. A person questioned in an examination or hearing cannot hide behind the privilege against self-incrimination. They must answer all questions put to them. This enables the Crime Commission and the Integrity Commissioner to obtain information that would not otherwise be available through traditional policing and investigative methods.

Access to these powers is particularly important in the fight against serious and organised crime and systemic corruption. Groups and individuals involved in these activities are well funded, actively attempt to frustrate investigations, and are skilled at countering law enforcement methods to avoid detection.

The Crime Commission, the Integrity Commissioner and ACLEI use the information obtained through these questioning powers for a range of important law enforcement purposes, including to progress investigations, to develop, analyse and disseminate intelligence to partner agencies, to address systemic vulnerabilities in organisations and to disrupt the operations of organised criminal groups, like outlaw motor cycle gangs.

These are significant powers that override the right to silence. However, they are vital to law enforcement's ability to investigate, prevent and disrupt some of the most serious criminal activity.

Examinations and hearings are already subject to a number of checks and safeguards to balance these interests. This bill will strengthen these, and strike an appropriate balance between giving law enforcement agencies the powers they need to keep us safe, and the need to preserve the fundamental right to a fair trial.

Impact of recent cases

A number of recent court cases have affected the way these agencies can use their existing questioning powers. These cases include X7 and the Australian Crime Commission, Lee and the NSW Crime Commission, Lee against the Queen and The Queen against Seller and McCarthy.

These decisions have had a significant negative impact on the operations of the Crime Commission and the Integrity Commissioner.

For example, following the decision in X7, the Crime Commission has stopped examining anyone who had been charged with an offence where the questioning might touch on the subject matter of the charges. This has already prevented the Crime Commission from obtaining valuable intelligence about the methodologies and activities of those involved in serious criminal activity, including recruiters and facilitators of foreign fighters and their links with other individuals.

Measures in the bill

The bill I am introducing today will respond to X7 and other relevant cases, by amending the Australian Crime Commission Act 2002 and the Law Enforcement Integrity Commissioner Act 2006 to place the Crime Commission and Integrity Commissioner's powers on a stronger footing.

The bill will make a number of changes to these Acts to clarify the nature and use of these powers, which I will go through in turn.

The bill will expressly authorise the Crime Commission and Integrity Commissioner to question a person who has been charged with an offence, which was the original intention behind those Acts.

This has been a very important power in the past. It has been used to question arrested paedophiles and child pornographers about the identities and locations of their victims. It has allowed law enforcement agencies to obtain a detailed understanding of contemporary drug trafficking techniques and to identify the individuals involved in those illicit activities. It has been used to weed out the insidious influence of corruption in our law enforcement agencies and make them more resilient.

The bill will also expressly authorise the use of derivative material obtained from an examination or hearing, and set out the circumstances in which examination, hearing and derivative material may be provided to a prosecutor.

These amendments are necessary to ensure that the Crime Commission, the Integrity Commissioner and their partners have clear authority to continue to take action based on material obtained from examinations and hearings. The bill will also expressly allow this material to be disclosed to investigators and others, so that it can be used to gather additional evidence (that is, derivative material) to support the prosecution of the person.

This bill will also more clearly authorise the Crime Commission to conduct examinations in the context of ongoing confiscation proceedings under the Proceeds of Crime Act 2002, and set out when that material may be used in those proceedings. These changes respond to Recommendations 3 and 4 of the Parliamentary Joint Committee on Law Enforcement's 2012 inquiry into unexplained wealth. This delivers on the Government's election commitment to implement the outstanding recommendations of the Committee's report.

The bill will make the same changes to the Integrity Commissioner's powers, and bolster the ability of Australia's law enforcement and integrity agencies to target criminals where it hurts most – their illicit wealth.

While these amendments will more clearly set out the ways in which examination, hearing and derivative material may be disclosed and used, these measures contain a number of important safeguards.

They will ensure that any use or disclosure of examination, hearing and derivative material will not prejudice a person's safety or their fair trial – one of the fundamental tenets of our criminal justice system.

The amendments to both the Crime Commission Act and the Law Enforcement Integrity Commissioner Act will more clearly set out the circumstances in which examination and hearing material can and cannot be disclosed.

The bill will place specific limits on the circumstances when examination material, hearing material and derivative material can be provided to the prosecution. In some cases, an investigator will have to seek a court's permission to disclose this material to the prosecution. The court will decide whether disclosure would be in the interests of justice.

The bill also makes it clear that courts retain their powers to ensure that the accused receives a fair trial.

The amendments will protect the right to a fair trial of a person questioned by the Crime Commission or Integrity Commissioner. They will ensure that law enforcement agencies can carry on their important role of fighting organised crime and corrupt elements within our law enforcement agencies without unfairly impacting upon the fundamental rights of the accused.

The amendments will also confirm that the Crime Commission's and Integrity Commissioner's coercive questioning powers can only be used for the specific purposes set out in legislation. That is, for the purposes of a Crime Commission special intelligence operation or special investigation, or for an investigation into a law enforcement corruption issue. For example, the amendments to the Crime Commission Act will more clearly identify that an examination always occurs in support of a special operation or special investigation. In some instances, material from an examination may assist in a prosecution or confiscation proceeding. However, the primary purpose of an examination is not to bolster the case against the examinee, but rather to gather information for the purpose of understanding, disrupting or preventing serious and organised crime.

Finally, the bill will also increase the penalties for breaching non-disclosure obligations relating to examinations and hearings so that they are consistent with similar Commonwealth offences.

Conclusion

The powers of the Crime Commission and Integrity Commissioner are significant. But so too are the challenges posed by serious and organised crime and its enabler, corruption. Serious and organised criminals exploit every advantage they can. The questioning powers of the Crime Commission and Integrity Commissioner go some way to levelling the playing field.

This bill will ensure that those agencies have the questioning powers they need, and that the information they gather can be put to maximum use to protect the community. It will do so in a way that upholds fundamental principles of our criminal justice system about the right to a fair trial.

Without these amendments, the Crime Commission and the Integrity Commission will struggle to fulfil their mandates and protect the community. They are vital to law enforcement's ability to understand, disrupt and prevent some of the most serious criminal activity.

Debate adjourned.