Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

Mr Deputy Speaker Causley, at the beginning of my remarks might I wish you well in your retirement. If I can be blunt about it, I think that you have a reputation for being a tough old bastard in this place! I will be free in my language, given that the chance of you punting me on the last day is slight. But you also have the good wishes of those with whom you have been involved in the vigorous contest of this parliamentary environment; we know you to be a person of great goodwill as well as one with a hide as tough as a rhinoceros!

Coming to the measures in the Australian Crime Commission Amendment Bill 2007, I can only echo the remarks of the shadow minister, but I would also add some of my own sentiments in relation to these matters. The explanatory memorandum and the government’s approach to this legislation treat as mere technicalities matters which are pretty fundamental. When the former National Crime Authority was reconstituted as the Australian Crime Commission, there was substantial parliamentary attention paid to the powers that would be granted to the new body, the range of matters over which it would have authority and the extraordinary capacity for the examiners, under the new process, to exercise those powers in the way that they currently are permitted to do. One of the compromises that were reached in relation to that process was a requirement that, before an examiner can compel a person to come and provide testimony—where they have no protection against self-incrimination—they must satisfy themselves that there is a substantial basis for the issuing of the summons and, to ensure that there is a public record of the rationale for that, they must put it in writing. That latter step is not a mere technicality. It is an essential element in the safeguards that are required, not simply for record-keeping but also for the due process of the exercise of those powers. Let me as somebody who has been involved in the justice system for many decades say immediately that there is a tremendous utility in the practice of having to write down the reasons you come to a decision.

Quite frequently we have an impression, we jump to conclusions, we imagine an outcome and then, in the course of drafting an opinion or, as judges do, writing a judgement, we start going through the steps and discover that there is a significant gap, a logical omission, which means that the conclusion which might, on its face, be jumped to simply cannot be sustained and there is no proper reason. So there is a fundamental reason why in all legal proceedings in which our freedom and our economic interests are at stake we require judges to place in writing their reasons before coming to their conclusions.

It is true that the issue of a summons does not of itself expose somebody to the loss of their freedom, a fine or immediate loss of property, but the consequence of failing to attend and failing to answer questions brings with it the penalties that the shadow minister has referred to and the potentiality of imprisonment for up to five years. It is not a small matter.

It also involves a person coming before a body, usually in secret, and being exposed to rigorous examination of their personal and financial affairs—something we would not expect to be exposed to, except with good reason. It is not a licence to drag people off the streets to examine them for no proper reason. Part of the undertaking which was given when the new mechanisms were set up, when there was a transition from the National Crime Authority to the Australian Crime Commission, was to put in place these measures as a safeguard.

I regard with some real concern the reference in the explanatory memorandum that failure to comply with what are dismissively regarded or expressed as technical requirements can be ignored. It is not merely saying that you can issue a summons and then shortly thereafter set down your reasons—a matter which I think this Committee would be relatively content with, if it was explained why those circumstances arose. This bill also means that you can issue a summons without setting down your reasons at all, and failure to do that does not affect the validity of the summons. If that is done in practice then there is limited capacity for anybody to see whether there was a proper basis upon which a summons was issued. And how can you challenge what is said to be the remaining substantive safeguard when the examiner has to be satisfied it is reasonable in all the circumstances to issue the summons? How can you actually establish a failure of the substantive requirement if you do not have to comply with the obligation to set down your reasons? There is a very substantial possibility that we are opening the door to abuses and misuses of these powers. I welcome the shadow minister’s statement that those in the Australian Crime Commission should be aware that this is not intended by the parliament—certainly not by this side of the House—as facilitating that.

I have some discontent with the fact that, as the deputy chair of the Parliamentary Joint Committee on the Australian Crime Commission, which has oversight of the Australian Crime Commission, the committee was not advised that this issue was one requiring attention. It is, I think, a matter of grave concern that the Australian Crime Commission and its board failed to come before the parliamentary committee which was established by legislation to supervise the work of the Australian Crime Commission. The parliamentary committee was not advised of the fact that there was a substantive issue arising which might affect a substantial number of the inquiries and examinations conducted under the legislation. In fact, we found out about this, as the shadow minister says, by the introduction of a piece of legislation into this parliament on Monday. That is an extraordinary thing. That is an extraordinary and contemptuous way to deal with the parliamentary oversight body established under legislation.

That parliamentary committee tabled yesterday a report entitled Inquiry into the future impact of serious and organised crime on Australian society. It is a bipartisan report. It supports the work of the Australian Crime Commission. The Australian Crime Commission has an obligation to report to that committee. It has not done so. As deputy chair of the committee, I find it virtually a contempt of the obligations under the act that that organisation should not have done so. I am, frankly, angered by the fact that we are facing this circumstance without the opportunity of the body that reviews the work of the commission—looks at how it is operating, can tender advice to the department—having played a role in the remedial legislation, and we are supposed to tick off on this amending legislation, which is plainly deficient in certain regards. The minister himself must acknowledge that. It will require the review of this parliament into the next session. We do not want to open the door to the potentialities that this legislation opens up. We want to make certain that people do not evade their obligations to come before the commission when they should, before an examiner, to be examined on matters which relate to serious and organised crime. We want to close loopholes which would be matters of mere inadvertence or inattention, which any member of this House, were they an examiner, might have themselves committed. Nobody is perfect and mistakes within the organisation can be made.

What I think is inexcusable is when a circumstance arises where there is litigation, where problems become manifest, that they are not reported to the parliamentary oversight committee which has responsibilities to this parliament and there is no opportunity to share the responsibility for the construction of the legislative response with the members of parliament who have the most experience and knowledge of that work; and then we are dealt into this circumstance in the manner that has occurred at the last minute with no opportunity for constructive dialogue with government to propose amendments.

One of the obvious points that the shadow minister has raised is whether there should be an obligation, where reasons are not provided before a summons is issued, to explain those circumstances as part of the obligation to write down those reasons.

Another point is: should we have so open-ended a circumstance that failure to provide any reasons at any time is not a reason for invalidity, given that we expect, as a parliament, that that be done? Every one of us also knows that in the daily workings of our experience, where there is an obligation to provide reasons and they are not provided, it leads to questions about the motive and whether or not there were valid reasons in the first place.

Everybody knows the credibility of an account that is provided substantially after the making of a decision or the witnessing of an event is significantly less than one that is recorded contemporaneously. The High Court itself has overturned decisions by judges made some long time after the hearing of witnesses on the basis that those judgements of judicial officers themselves cannot be given the same weight after the expiry of so much time. Anybody knows that, if you are a police officer and you have a discussion with somebody or witness some event and you record it in your notebook at the time, it is likely to be taken as pretty much gospel, but if you write it down from recall three months later, people will have somewhat natural scepticism about whether you are reconstructing events to accord with what you know to be the desired outcome rather than recording what actually was your view at the time.

So I think there are pretty important matters here. There are also issues of retrospectivity, which this parliament is always concerned about. I must say that, on balance, I well understand why both the government and the opposition in this instance are prepared to accede to retrospectivity in respect of matters where the timing of the recording of reasons might have been slightly after the event. But I would hope we are not in the process, because we were not briefed and we do not know the circumstances, of also approving of a whole set of circumstances where no reasons at all were recorded. We do not know how many instances there are of examiners under this legislation, where they have a statutory obligation to set down their reasons, who have failed entirely to do that. We do not know what we are approving. We do not know the circumstances. We do not know how many cases there might be. We do not know whether we are being asked to approve something that really is in a sense innocent error or a complete disregard of the parliament’s instructions as part of an agreed package, an agreed arrangement of where we would find the balances between the rights of the citizen not ordinarily to have their liberties interfered with and the respect we have for an organisation that naturally is empowered to look at serious and organised crime.

As I started to say, one of those key balances was to say that we will permit people to be forced into a circumstance where they will be compelled to incriminate themselves, compelled to provide their financial documents or compelled to provide all kinds of personal information about their friends, their acquaintances or their relationships with other people, and to do so in secret, in an inquisitorial forum, but we will only do that if the examiner is satisfied on a proper basis and has recorded the reasons for that satisfaction.

So we are not really sure what we are approving here. We are not sure what the background to this is, and that is why I am—I suppose ‘angered’ is too strong a word—certainly extraordinarily concerned. I do not know the factual background as to what precisely we are approving. Secondly, I am extraordinarily concerned that the Australian Crime Commission has not discharged what I regard as one of its fundamental responsibilities, of saying ‘Look, we do have a problem’ in reporting to the parliamentary committee, the Joint Committee on the Australian Crime Commission of this parliament, of which Senator Ian Macdonald is the chair and I am deputy chair. Its members are not people who cannot be trusted on matters even in the greatest of confidence. There is no reason why we could not have been consulted. The failure to consult in relation to this matter, or simply even to advise, is something that I find fundamentally wrong, and I have not heard any explanation whatsoever for that failure, particularly when the committee was still proceeding with its review of and its report on serious and organised crime as late as last week. The committee was meeting regularly and discharging its obligations to the parliament in a report which was tabled in both houses yesterday.

So there are serious matters which give rise to concern. These measures will pass in this form. I think they do demand the attention of the parliament in the next sitting, whether the government is returned or the opposition becomes the government, because as they are currently framed I do not think they satisfy anybody. They provide the bandaid patch-up that appears to be required to prevent the threatened damage that we understand might happen in relation to a number of investigations, not merely the Brereton investigation. We are given to understand similar difficulties might arise in relation to a number of other matters—involving motorcycle gangs and the like—where summonses have been issued and there have been refusals to provide evidence or to fully cooperate.

Can I say as a final remark I find it particularly disturbing, when the Australian Crime Commission has come before the parliamentary committee upon which I serve as deputy chair and has advocated that it be treated with a similar kind of regard as a court would—and that is to facilitate the capacity for there to be something analogous to a contempt power—that its own statutory obligations of recording its reasons, which is another analogous provision with the court, have not been complied with. It is a series of issues that remains for later attention. Plainly, at this stage, members of the House can do no more than proceed as they are. But there will be a lot of interesting work to be done in the new parliament by the joint committee. I am certain that there are many unanswered questions that we will be seeking more information on. In my closing remarks, because I think they will be my last comments in the parliament before the forthcoming election, I wish all members the best for the election. I will not say ‘success’, because I could not extend that wish to all, but I wish all members a very relaxing Christmas that will follow.

See this speech in context