Kerry Nettle (NSW, Australian Greens) Share 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.