Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I present the report of the Parliamentary Joint Committee on the Australian Crime Commission on the review of the Australian Crime Commission Amendment Act 2007, 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.

I rise to table the report of the Parliamentary Joint Committee on the Australian Crime Commission on the inquiry into the Australian Crime Commission Amendment Act 2007. Before I report on the committee’s findings, I want to thank my colleagues on the committee for the work that they have put into this inquiry. I thank Senators Barnett, Parry and Polley, along with our colleagues from the other place: the deputy chair, Mr Wood; along with Mr Champion, Mr Gibbons, Mr Hayes and Mr Pyne. I also want to thank all those who took the time to make submissions to the inquiry, both oral and written. A special thank you needs to go to the Commonwealth Ombudsman, whose report into the ACC’s use of its examination powers the committee found very enlightening. Finally, the committee thanks the committee secretariat, headed up by Dr Jacqueline Dewar and supported by Monica Sheppard and Jill Sedaitis, for all of the assistance that they have provided.

This report is the culmination of a six-month-long examination into the provisions and operation of the Australian Crime Commission Amendment Act 2007, which was passed in this place on 18 September 2007 and then again two days later in the other chamber. For those senators who remember, the amendment act was read for a first, second, and third time in one day after standing order 111 was suspended. At the time, a number of concerns were expressed about the lack of opportunity for consideration of the substance of the bill. Consequently, Labor members and senators pledged that, if elected, they would undertake to properly scrutinise the provisions of this bill and make any appropriate changes. Once the parliamentary joint committee was reconstituted, members as promised undertook to review the substance of the amendment act. I believe that the committee’s findings vindicate those who voiced their objections in this place almost a year ago.

The amendment act was formulated in response to a decision by Mr Justice Smith in the Supreme Court of Victoria who determined in no uncertain terms that whenever an Australian Crime Commissioner examiner issues a summons the reasons for the summons must be noted in writing prior to it being issued. The state of the law at that time required examiners to put their reasons in writing but with no explicit requirement in the legislation as to when. Justice Smith’s decision clarified this point, putting into question the legality of a number of summonses that had been issued without recording the reasons before the summons had been issued. This, the government argued at the time, would jeopardise a number of prosecutions already on foot. The parliament was told on one occasion that 600 summonses or notices and 30 prosecutions could be challenged based on the Smith decision. The then government’s solution was the amendment act which changed the law so that the reasons for a summons being issued could be recorded in writing before, at the time of, or after the summons was issued. This was to operate retrospectively so that the prosecutions already on foot would not be impacted.

It is the firm belief of the committee that these changes were implemented primarily to cover the tracks of some examiners whose methods in issuing summonses and recording their reasons were outside the requirements of the existing legislation as interpreted by Justice Smith. The committee has found that the justifications for this legislation were questionable and not supported by the evidence before us. We have consequently recommended that most of the substantive provisions of the Australian Crime Commission Amendment Act 2007 be repealed.

The committee commends 10 recommendations to the government. At this point I would like to highlight a few of them. Recommendation 2 calls for the ‘amendments made to part 2, division 2 subsection 28, No. 1A and subsection 29, No. 1A of the Australian Crime Commission Act 2002 by the Australian Crime Commission Amendment Act 2007 be repealed, but that those subsections be amended to ensure that the reasons for the decision must be recorded in writing before the issuing of a summons or notice’. This recommendation really goes to the heart of the matter. Ultimately, there needs to be a clarification in statute as to what point in time it is acceptable to record reasons for a decision to issue a summons or notice.

Recommendation 2 suggests that Justice Smith’s decision requiring reasons to be recorded before a summons is issued be followed and affirmed through an amendment to the act. The committee believes that the best practice of any federal executive agency exercising coercive powers should be the recording of a brief memorandum outlining the reasons for a decision to employ coercive means. It was argued throughout the course of the hearings that in urgent matters, recording reasons was impractical. The committee does not accept this view.

Recommendation 3 calls for part 2, division 2, subsection 28(8) and subsection 29(5) of the Australian Crime Commission Act 2002 to be repealed. The practical effect of recommendation 3 is that failure to record reasons should invalidate a summons or notice to produce. The committee believes this to be particularly necessary because without an imperative for examiners to record reasons for their decisions there is no proper scrutiny of their decisions. Their exercise of executive coercive powers would go completely unchecked by any sort of accountability mechanism. Contrary to the arguments by the government at the time, the Attorney-General’s Department and the commission itself, these are not technical requirements. These are accountability measures that are fundamental to the exercise of power and are essential for the protection of the rights and freedoms of Australian citizens. Recommendations 1, 4, 9, and 10 together support the expansion of the Commonwealth Ombudsman’s powers to give it the ability to hear complaints, look at ACC records and report to the parliament and the parliamentary joint committee on the activities of the commission.

The last recommendation I wish to draw the Senate’s attention to is recommendation 5. Recommendation 5 deals with sections 10 and 12 of the amending act. The operation of these sections retrospectively validates any summonses and notices issued prior to the amending act coming into effect. Recommendation 5 calls for the repeal of sections 10 and 12 of the amending act. However, this recommendation recognises that there are a number of prosecutions on foot that would or could be jeopardised should the summonses and notices issued in reliance on these sections suddenly be invalidated. Recommendation 5 proposes to preserve the integrity of the summonses and notices issued but calls for the immediate discontinuation of the practice of retrospectively recording reasons for the issue of summonses. This is in line with recommendation 2.

I would like to make a final observation regarding the culture and behaviour of the Australian Crime Commission that the committee was made aware of during the course of this inquiry. When Justice Smith’s decision was handed down, prompting the then government to introduce the amending act, the ACC made no attempt to notify the parliamentary joint committee, the parliamentary oversight body of the commission. As the chair of that committee, I find it particularly concerning that when the commission believes that legislative change is required to ensure that it is able to operate effectively it does not even bother to inform its parliamentary oversight committee. This behaviour shows contempt for the committee and its role and I hope the commission will act differently if such an occasion ever arises again. This committee exists for a reason and should not be circumvented. Mr President, I table this report and encourage senators to give it due consideration.

Debate interrupted.