Helen Polley (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Aged Care) Share this | Link to this | Hansard source

Labor supports the measures contained in this bill, the Law Enforcement Legislation Amendment (Powers) Bill 2015, as they provide clarification around powers, keeping faith with the original intent of the Australian Crimes Commission, the ACC, and the Australian Commission for Law Enforcement Integrity. The ACC and ACLEI have sought these legislative changes on the basis of their practical experience in working with the existing legislative regime, particularly with past charge examinations.

The bill contains safeguards that apply to hearings so that every Australian continues to enjoy the right to a fair trial and a fair hearing. The purpose of this bill is to amend the Australian Crime Commission Act 2002 to clarify the powers of the ACC examiners to conduct examinations and, similarly, amend the Law Enforcement Integrity Commissioner Act 2006 to clarify the powers of the integrity commissioner, supported by ACLEI, and to conduct hearings and to make a consequential amendment to the Public Interest Disclosure Act 2013, to ensure that the definition of 'designated publication restrictions' refers to the amended provisions in the ACC Act.

If I can move to the structure of the bill, the bill is divided into two schedules: schedule 1, divided into two parts, which introduces amendments to the ACC Act and to the PID Act; and schedule 2, which introduces amendments to the LEIC Act. As the relevant provisions of the ACC and the LEIC acts are similar, schedules 1 and 2 make similar amendments.

The background to this change is as follows. The ACC and ACLEI conduct examinations and hearings which may involve compelling a person to answer questions about matters or produce documents or things relating to an ACC special operation or special investigation into serious and organised crime activities or relating to an investigation into law enforcement corruption. These examinations and hearings enable the ACC and ACLEI to obtain information that would not otherwise be available or which could only be obtained after long and complex investigations. Examination material, for example, plays an important role in assisting the ACC to develop an understanding of how serious and organised crime operates, to analyse this information with other relevant information and to disseminate it to the Commonwealth state and territory partner agencies as part of an intelligence product. A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing on the basis that it might incriminate them or expose them to a penalty. However, there are limitations on the circumstances in which answers can be used in evidence against a person in criminal proceedings or proceedings for the imposition of a penalty.

The powers of the ACC and ACLEI to conduct examinations and hearings have been considered in a number of recent cases, discussed below, including R v Seller and McCarthy (2013) 273 FLR 155 (Seller and McCarthy), X7 v Australian Crime Commission (2013) 248 CLR 92 (X7), Lee v NSW Crime Commission (2013) 251 CLR 196 (Lee No. 1) and Lee v R (2014) 88 ALJR 656 (Lee No. 2). These cases have placed limits on the use of the examination powers in certain circumstances in which they had been previously utilised. The bill is intended to address these issues to clarify the ability of the agencies to exercise their powers as before, in circumstances which government has stated are in accordance with the original policy intent.

I will now outline the ACC examination powers in relation to this bill. The following is a summary of the current operations of ACC examinations. An ACC examiner may conduct examinations as part of a special ACC operation or investigation. The examiner may conduct the proceedings as they see fit, allow legal practitioners to be present and determine when it is appropriate for a witness to be examined or cross-examined, and, while proceedings must be held in private, a witness must be informed of any others who are present.

The Evidence Act 1995 of the Commonwealth does not apply to such an examination, so common law rules of evidence, subject to the ACC Act provisions, apply. The examiner may make such arrangements as are necessary to avoid prejudice to the safety of the person summoned, or protect them from intimidation or harassment. The examiner has the same protection and immunity in exercising their functions as a justice of the High Court of Australia. The examiner is exempt from serving a record of written reasons for decisions to issue a summons under the ACC Act. Any report that sets out findings that an offence has been committed or makes a recommendation to institute a prosecution must not be made available to the public unless it is based on evidence that would be admissible in prosecution of a person for that offence.

Examiners have power to summon or compel witnesses to attend examinations and to give evidence on oath or affirmation when the board has made a determination of a special operation or special investigation. A person and their lawyer, if legal professional privilege does not apply, must not fail to attend or answer questions, where it is proven that a valid summons was issued, under penalty of fines and/or imprisonment. The person may challenge the validity of the summons when it is an element of the offence or as an abuse of process.

The person and their lawyer may also be held in contempt of the ACC for similar conduct towards the examiner, but the examiner must inform the person of their application, stating grounds and evidence in support, for it will be dealt with by the Federal Court of state or territory Supreme Court. It is an offence to obstruct or hinder the ACC or an examiner in the performance of their functions or to disrupt an examination or threaten any person present at the examination before an examiner. Double jeopardy does apply to offences under the ACC legislation in state and territory and Commonwealth offences.

A person appearing before an ACC examiner as a witness may not refuse to answer a question or produce a document or things on the grounds of self-incrimination, that is, the privilege is abrogated. Subsection 30(5) provides a use immunity for a person who, before answering a question or producing a document or thing, claims that it might tend to incriminate them or make them liable to a penalty. This type of immunity prevents self-incriminating information from being used directly as evidence against the person who provided it. The use immunity applies to criminal proceedings and proceedings for the imposition of a penalty other than confiscation proceedings or proceedings relating to giving false evidence. Derivative use immunity is not provided. This means that self-incriminatory material may still be used to obtain other evidence that would be admissible against the person. The ability to use derivative material from an examination does not automatically compromise a fair trial.

The ACC Act does not include any special provisions relating to questioning of a person facing a current or imminent charge or proceedings. It does not exclude the ACC from questioning a person in such circumstances nor does it explicitly allow it. As outlined separately in the committee consideration section of this digest, a parliamentary committee recommended amendment in 2005 to prevent the ACC from examining a person subject to criminal or confiscation proceedings on matters relevant to those proceedings.

The coercive powers may be considered to interfere with a person accessing a fair trial when the matter they are summoned to is a compulsory inquisitional process of examination instigated by the executive government. This may thus provide a real risk to the administration of justice. The prosecution does not gain an unfair advantage by mere fact that the examination occurs or does not occur, primarily due to the power of the examiner to prevent disclosure and ensure a fair trial for the accused. In other words, there is no real risk in the administration of justice due to the safeguards of the examination, even in the face of a person facing pending criminal charges regarding their answers when the examiner can utilise safeguards against disclosure to prosecuting authorities under section 25A of the ACC Act.

Mere dissemination of evidence to a prosecuting authority is not enough for a trial to be compromised, as it can only apply if it might prejudice a fair trial from occurring and is not enough for a trial to be stayed. To force the accused to confess their guilt or give away information that may provide for their defence or explain their conduct that allegedly supports the charges, depending on the nature of the proceedings, may prejudice a fair trial. Any relief would depend on the breach of direction or of where a direction should have been given and steps taken to cure its effect. The judicial officer could also use their discretion to exclude evidence under sections 90 and/or 138 of the Evidence Act 1995. However, recent cases regarding the use immunity of examination material have had their decisions reserved in the High Court of Australia, which has led judges in other cases to issue temporary stays of prosecutions.

Any dissemination is subject to and overridden by the examiner's non-publication directions, consistent with the decision of Australian Crime Commission v OK [2010] FCAFC 61, where a majority of the Federal Court upheld the legislation. The examiner determines whether confidentiality applies to evidence that is given or the fact that a person is going to give evidence and whether a non-publication direction should be given. The examiner is required to do this when a disclosure might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

The court may seek that evidence directed to be confidential or not published be made available to a person charged with an offence before a federal, state or territory court if it is desirable in the interests of justice. The 'interests of justice' has no definition and can encompass a wide range of factors. When an examination is finished, the examiner must give a record of proceedings and any documentation or things given to the examiner in connection with the examination to the head of the special ACC operational investigation. These confidentiality directions apply also to disclosing notice for summons to obtain documents. The person themselves may be prevented from disclosing the notice other than to their lawyer or permitted person or body.

As outlined in the explanatory memorandum, several recent cases could affect the ACC's use of examination powers. These cases include those which follow. In Regina v Seller; Regina v McCarthy, the New South Wales Court of Criminal Appeal found that the use of evidence derived from examination material in criminal proceedings against the examinee could, in some circumstances, be unfair. In X7 v Australian Crime Commission, a 3 to 2 majority of the High Court found that the ACC Act did not authorise the ACC to examine a person who had been charged with an offence about the subject matter of the charge, referred to here as a post-charge examination. In this case, the majority noted that such an examination would affect the fairness of the examinee's trial and could only be authorised if there were clear words indicating parliament's intention. In Lee No. 1, a 4 to 3 majority of the High Court found that the New South Wales Criminal Assets Recovery Act 1990 authorised the post-charge examination of a person. The majority distinguished the decision in X7 on the basis that the relevant examination occurred as a result of court order. In Lee No. 2, the High Court unanimously found that the New South Wales Crime Commission's unlawful disclosure of the accused's examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial. The examination occurred before the accused was charged with an offence.

According to the explanatory memorandum, these cases have had an impact on the Australian Crime Commission's operations. Following the decision in X7 v Australian Crime Commission, for example, the Australian Crime Commission has stated that it no longer examines persons already charged with an offence if the questioning could touch upon related matters. The decision in X7 touches upon both the motivations of the current amendments and the balancing of rights and public interest in the area of criminal law. X7 v Australian Crime Commission [2013] HCA 29 is one of the more important of the recent cases that not only affected the examination powers of the Australian Crime Commission and ACLEI, but clearly identified the 'principle of legality', which requires that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with 'irresistible clearness'. It is upon this principle and the stated requirements for statutory intent that the bill has been brought forward to clarify the operations of the agency's examinations with the requested irresistible clearness.

The compulsory examination powers of the Australian Crime Commission and ACLEI will be clarified by the amendments proposed in the bill. They will provide the express words and the clear intent that recent decisions have indicated would be required to permit persons who have been charged with an offence to be examined on matters related to the offence. While the amendments would unavoidably alter the process of a trial by limiting an examinee's defence options, they will also introduce measures intended to protect the processes of justice and the right to a fair trial by limiting the use to which examination and derived material may be used. Labor supports law enforcement agencies having the appropriate tools and powers to combat serious and organised crime and law enforcement corruption while ensuring safeguards for fair trials and hearings. The proposed amendments are a proportionate response to provide this balance. I commend the bill to the Senate.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens do not support the enactment of the Law Enforcement Legislation Amendment (Powers) Bill 2015 as currently drafted. The bill seeks to amend the Australian Crime Commission Act 2002 and the Law Enforcement Integrity Commissioner Act 2006 to enhance the powers of Australian Crime Commission examiners to conduct examinations, and the Law Enforcement Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity, to conduct hearings.

The conduct of hearings by the Australian Crime Commission, the ACC, and the Law Enforcement Integrity Commissioner has previously raised strong human rights and rule of law concerns and has been subject to consideration by the Senate Legal and Constitutional Affairs Committee and other parliamentary committees. These are non-judicial administrative bodies which are invested with exceptional powers—powers to compel a person, under threat of criminal sanctions, to answer questions that could have a material impact on the person's right to a fair trial if he or she is already, or may be, charged with a criminal offence. This can have the effect of limiting the person's right not to incriminate himself or herself.

The changes proposed in this bill seek to expand the powers of these bodies to conduct coercive hearings that they must attend, and to deny people attending those hearings the right to silence, even in circumstances where the person has been charged with a criminal offence and will face a judicial process in the future. In doing this the bill significantly limits a person's right to a fair trial, particularly by affecting the equality of arms principle and the protection against self-incrimination.

As the Law Council of Australia has summarised, the bill authorises an Australian Crime Commissioner examiner to conduct an examination in many circumstances—pre-charge, post-charge, pre-confiscation application and post-confiscation application—and to compel answers to questions relating to an ACC special operation or special investigation into serious and organised criminal activity. Further, it authorises the Integrity Commissioner to conduct a hearing pre-charge, post-charge, pre-confiscation application or post-confiscation application, and to compel answers to questions relating to an investigation into law enforcement corruption.

In such an examination or hearing a person cannot refuse to answer a question or produce a document or thing on the basis that it might incriminate them or expose them to a penalty. The changes also seek to respond to a number of judicial findings, including findings in the High Court. These findings have made it clear that the compulsory examination of a person who has been charged with an offence about the subject matter of the pending charge does constitute a fundamental alteration to the process of criminal justice in Australia, given the accusatorial nature of criminal justice. These High Court cases have brought the validity of post-charge investigations into question. Rather than heed the concerns of the High Court in this regard, this bill seeks to clarify with clear statutory language that the parliament intends to alter the process of criminal justice in Australia in this fundamental way. These are very serious issues. They have given rise to concerns by a number of submitters that the changes proposed in the bill may be open to constitutional challenge. Indeed, the bill appears to have been drafted with this possibility firmly in mind. There are echoes of the citizenship debate in this very bill.

Let me be clear. The Australian Greens take seriously the need to address, disrupt and prevent serious and organised crime in Australia. The Australian Greens acknowledge that the coercive examination powers of the ACC and the Law Enforcement Integrity Commissioner are not designed to determine a person's guilt or innocence, but rather to disrupt and prevent serious and organised crime and to prevent suspects from disposing of valuable information about current criminal activities, operations and practices of others that may otherwise be lost. The information provided by the ACC and the Law Enforcement Integrity Commissioner suggests that the X7 case and other judicial findings have had a significant negative impact on the operations of the ACC and the Australian Commission for Law Enforcement Integrity.    The Australian Greens agree that this is relevant and important information to consider.    However, the Australian Greens also take seriously the traditional common law rights that are integral to ensuring that a person receives a fair trial, including the privilege against self-incrimination and the right to silence. These principles are entrenched in both common law and international human rights law—and are expertly outlined in submissions by the Australian Human Rights Commission to the Legal and Constitutional Affairs Legislation Committee inquiry into this legislation. The right to a fair trial is also protected by the constitutional principle of legality whereby 'clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend' this fundamental right.

Ensuring that a defendant is able to present his or her defence in the manner that he or she chooses is an important component of the concept of equality of arms and is a principle that has defined our criminal justice system for decades. The changes in this bill risk providing the prosecution with information that can be used against a defendant when he or she is facing serious criminal charges. This is because derivative use immunity is not provided for in the bill. The practical consequences of this are that material obtained as a result of an ACC examination or a Law Enforcement Integrity Commissioner hearing can be used to obtain other evidence that can later be used in court against the person. In other words, the prosecution is able to gain an unfair advantage inconsistent with the longstanding 'equality of arms' principle.

Both the Law Council of Australia and the Australian Human Rights Commission have raised serious concerns with key features of the bill. These issues relate to whether the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity should be permitted to conduct an examination or a hearing after the person subject to the process has been charged with a related offence or such a charge is imminent; and whether the ACC and Australian Commission for Law Enforcement Integrity should be allowed to disclose information to a prosecutor which has been received from post-charge examinations and hearings.

In weighing up the need to protect the right of an examinee or witness to a fair trial and the need to ensure that the ACC and Australian Commission for Law Enforcement Integrity are not adversely hindered in the performance of their respective roles the Australian Greens are not confident that a fair and appropriate balance has been struck in this bill as currently drafted.

As the Law Council of Australia explains, despite the existence of some safeguards, there is a real risk that the administration of justice will be interfered with by coercively requiring a person to answer questions designed to establish that he or she is guilty of the offence with which he or she is charged and then providing that information to a prosecutor. This risk also means that there is the potential for certain provisions in the bill to be beyond the legislative power of the Commonwealth— that is, unconstitutional. As noted by a number of submitters, including no less than the New South Wales Office of the Director of Public Prosecutions, the inclusion of the severability clauses implies that the drafters of the bill expected that key provisions of the bill could be made subject to judicial scrutiny should the bill be passed in its current form. This leads to an unsatisfactory level of uncertainty about the state of the law in an area that may have very serious implications for the investigation, disruption and prosecution of serious and organised crime and for the fair trial rights of those who have been charged with such activity.

The bill does not include any safeguards to limit the proposed power to conduct post-charge examinations and hearings. This means that an affected person would have limited recourse to the courts in circumstances where a post-charge investigation unduly interferes with their right to a fair trial. This is particularly significant given the nature of the proposed changes in the bill which will significantly expand the circumstances in which such examinations and hearings can be conducted These changes effectively mean that where a defendant has been charged or is about to be charged for any offence, including a low-level crime, they can be examined about this and other matters. The bill allows the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity to disclose to a prosecutor information obtained through a post-charge examination or hearing. While these disclosure powers come with some safeguards, such as the requirement that a court order must precede a disclosure, they are likely to be of limited practical effect. As the Law Council of Australia notes, this is because the court will be asked to make an order authorising disclosure before having the opportunity to hear how such an order may impact on the conduct of the defence case.

In light of the above concerns, the Australian Greens recommend that the bill not be passed in its current form. The Australian Greens also support recommendations made by the Law Council of Australia to the Legal and Constitutional Affairs Legislation Committee inquiry into this legislation that the government should undertake a comprehensive review of the Australian Crime Commission Act which considers whether the act provides an effective and appropriate framework for the investigation of serious and organised crime and adequate protection of fundamental common law rights such as the right to a fair trial; and clarify to the parliament that this bill in its entirety is within the power of the Commonwealth Parliament to enact. For these reasons the Australian Greens do not support this bill.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

This bill is a further step by this government to ensure that our police and crime detection agencies have every power at their disposal to address serious and organised crime. We as a government are determined to do what we can as a community to lessen the impact of those involved in serious crime, in organised crime. This bill is part of a series of measures by the government that underlie the basic tenet of ensuring that Australians are safe, that the community is as free as possible from the impact of all sorts of crimes. We only have to look around our country to see some of the results of what serious and organised crime can do to our society. The epidemic of ice—that horrendous drug which seems to be readily available—is the result of work by serious and organised crime. This government will do everything possible to address every element of the work of the crime tsars in our country.

This bill, the Law Enforcement Legislation Amendment (Powers) Bill, clarifies the power of the Australian Crime Commission to conduct compulsory examinations under the Australian Crime Commission Act. Secondly, it clarifies the power of the Integrity Commissioner, supported by the commission, to conduct compulsory hearings under the Law Enforcement Integrity Commissioner Act. Thirdly, it clarifies the uses to which the information and material obtained through the exercise of those compulsory powers may be put.

This bill, like all of those in this field, was sent to the Senate Legal and Constitutional Affairs Legislation Committee, which I chair, for consideration and examination. A number of submissions were made, which the committee looked at very closely. The committee then determined its view on this legislation. I want to thank Senator Polley for the speech she has given in support of the bill. I also thank Senator Collins, a member of the Legal and Constitutional Affairs Legislation Committee, for her support in dealing with this review and for joining the government in the recommendation. I should acknowledge both Senator O'Sullivan and Senator Bilyk, who are also members of that very hardworking committee which has looked into this.

The clarification I spoke of earlier is urgently required following a number of recent court decisions—most notably by the High Court in Lee v The Queen, and in X7 v Australian Crime Commission, and by the New South Wales Court of Appeal in cases referred to as Seller & McCarthy—which raised questions about the scope of those powers as intended by parliament and as expressed in the act.

The Commonwealth Director of Public Prosecutions gave evidence to the committee which suggested that there are at least 11 matters in which those court cases are or may be the subject of a defence challenge to the prosecution, including through temporary and permanent stay applications. This is obviously creating very considerable delays for effective prosecutions and has placed enormous strain on the resources of the Commonwealth Director of Public Prosecutions and those of the investigative agencies. Because case law is necessarily confined by its facts, the judgements arising from those challenges will be at best incrementally clarifying and at worst inconsequential. Amending legislation was the only cure. The Office of the Commonwealth Director of Public Prosecutions said in their evidence that the bill was intended to make it clear that, where it is lawful to do so, pre-charge examination or hearing material given by an accused to an investigating agency may be disclosed to the prosecution even if that material is not directly admissible as evidence against the accused. The CDPP also went on to say that, subject to certain limitations, derivative material that has been lawfully obtained from an examination or hearing may be disclosed to the prosecution, and is admissible in evidence against the examinee. While there may still be issues in identifying precisely what was derived from a particular examination or hearing, this aspect of the bill should assist in reducing the number and scope of the kinds of defence challenges which have arisen in prosecutions since the decisions in Seller & McCarthy.

The bill comprises two schedules, which propose amendments to the Australian Crime Commission Act and to the Law Enforcement Integrity Commissioner Act and make a consequential amendment to the Public Interest Disclosure Act. Schedule 1 of the bill proposes amendments that would affect the Australian Crime Commission's examination powers, while schedule 2 of the bill proposes amendments that would affect the Integrity Commissioner.

In the summary of its submission to the committee, the Australian Commission for Law Enforcement Integrity said that:

Schedule 2 of the Law Enforcement Legislation Amendment (Powers) Bill 2015 focusses on clarifying the Integrity Commissioner's powers to conduct coercive hearings and implements safeguards to ensure that the coercive hearing process and the disclosure of derivative material does not affect the fair trial of a witness. ACLEI welcomes the proposed amendments which will provide greater clarity about the hearing process and use of information obtained through that process.

Some have suggested that this bill considerably expands the powers available, but it should be noted that the bill does not give ACLEI any new coercive powers or expand its current powers. Rather, having regard to the decisions and guidance of the High Court in relation to the fair trial principle, the measures restore, clarify and sustainably restrain the Integrity Commissioner's coercive information-gathering powers to the way they were originally planned. The safeguards are an appropriate balance that retains and supports the operational objectives for which the Australian Commission for Law Enforcement Integrity was established. The bill proposes a number of mechanisms to ensure that hearing powers, including dissemination and derivative use relating to hearing material, do not interfere with a witness's right to a fair trial. These measures include prohibition, in some instances, through to increased judicial oversight and scrutiny.

The committee determined that this bill was a useful tool in the fight by our country against serious and organised crime. I regret to say that the recommendation of my committee was not unanimous. The Greens political party representative on the committee has issued a dissenting report in which the Greens political party recommend that the bill not be passed and that a comprehensive review of the Australian Crime Commission Act be undertaken. They further recommend that the bill should be looked at to ensure that it is within the power of the Commonwealth parliament to enact. In relation to the second matter, clearly the government obtains the very best advice possible on these types of issues, and it is the government's view, according to the evidence presented to my committee, that it is within parliament's power. This is, I suggest, a similar issue to the removal of citizenship that is being spoken about and was referred to earlier in this debate. Again, the government does not bring forward these proposals unless they have full legal oversight and the very best legal advice as to their constitutionality.

The Greens political party's other recommendation, that there be a comprehensive review of the Australian Crime Commission Act, is, again, one of these approaches that we see so often from the Greens political party of, 'Let's not do this.' It is relatively urgent. The Director of Public Prosecutions has said so; the commissioner for law enforcement integrity has said so following recent High Court decisions. According to the evidence, which I have referred to, 11 matters currently before the courts could be delayed unless this sort of supporting legislation is passed. But the Greens political party want to have a review. So we will send this off to the never-never and perhaps in a year or a couple of years we will have a review and we would all argue about it—in which time how much more damage to Australian society would be done by serious and organised crime? As I said at the beginning of my remarks, these bills are all about giving our law enforcement agencies every opportunity, within our notions of justice and fairness, to bring wrongdoers to account.

I, of course, am of an age where, as young people, we used to talk about Nineteen Eighty-Four. It was a book written by someone I should know—a very significant book of the sixties and seventies.

Simon Birmingham (SA, Liberal Party, Assistant Minister for Education and Training) Share this | Link to this | Hansard source

Orwell.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

George Orwell—thank you, Senator Birmingham. He also wrote Animal Farm, I think. In my youth, we used to read Orwell's book Nineteen Eighty-Four, and it depicted a society where on every street lamp there was a camera and everything you did was looked at by Big Brother. In those laissez-faire days of the sixties and seventies, we were all horrified that we might get to 1984 and that these things would be upon us. We are all absolutely certain that could never happen.

Of course, not quite to the extent predicted by George Orwell, we have gone a long way to where some of the normal freedoms we as a society have have been curtailed. I always ask: which impact on society is more important? Sure, we lose some of our freedoms and some of the rights that we may have had in times gone by, but we are fighting an enemy that is so much more organised and so much better resourced than it has been in the past—and that is serious and organised crime, which, I might say, interacts with and in many instances supports terrorism around the world. I have every confidence in the Australian Federal Police, in the Australian Crime Commission, in ACLEI and in all of the Commonwealth law enforcement agencies—and, I might say, almost all of the state enforcement agencies. They are very professional, fair people who do a job protecting society. But in their daily work they compete against serious and organised criminals, who know no rules and have no restraints on what they can do. They do not have any restraints on their resources—the money and the advice they can get, including the support of professionals in various fields such as accountants and lawyers. They have the money to get the very, very best of legal, accounting and other advice, but they do not have to worry about the rules that the police and our enforcement agencies have to worry about. If the police make one minor error in their investigation of a particular matter, it is a front-page headline and everyone is encouraged to think that our police are bad, naughty, corrupt or whatever for often very slight infringements of the rules—but they do have to follow the rules. Of course, as law enforcement people, they have no concern with and no argument against complying with the rules, but it does mean that, every time they go into the fight against serious and organised crime, they do it with one hand tied behind their back. These examinations that were introduced into the Australian Crime Commission Act some time ago have enabled the law enforcement agencies to turn the tables a little, but they are still governed by the law, which their opponents in serious and organised crime of course are not.

So, Mr Acting Deputy President, while in different times or different places—if we lived in a perfect world—some of these provisions that the government brings forward we may be a little uneasy about; but, when it is a question of the lives and welfare of my family or your family versus some of the freedoms we might have to give up, I know I will always go with those whose job is to protect me and my family and everyone else and their families from the ravages of serious and organised crime.

I sometimes give the Greens political party the benefit of the doubt that they are erring on the side of caution—

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

Not very often.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

but, as you say, Senator O'Sullivan, I don't do that very often. Some of the attitudes and approaches of the Greens political party to people smugglers, terrorism and serious organised crime at times makes me wonder just whose side they are on. I will give them the benefit of the doubt, on this occasion, that they think there are reasonable grounds for opposing this bill. I certainly do not. I and the committee I chair urge that this bill be passed.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

As the deputy chair of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, ACLEI, and—as Senator Macdonald mentioned—as a member of the Senate Legal and Constitutional Affairs Legislation Committee I will make some brief comments on this bill.

Serving on the ACLEI committee has given me insight into the tools that Australia uses to combat law-enforcement corruption and serious organised crime. These two challenges go hand in hand given that it is very difficult for one to succeed without the other. ACLEI refers to the relationship between corruption in law enforcement and organised crime as the 'corruption handshake'. That is why ACLEI's model of operation—where they retain core staff but co-opt staff from other Commonwealth agencies, according to their needs—is so effective. It enables these agencies to share specialist knowledge in the understanding of serious organised crime, in the case of the Australian federal police and the Australian Crime Commission, and corruption risk factors, in the case of ACLEI.

When ACLEI forms a task force, instead of jumping in early to remove corrupt staff from an organisation they observe them over an extended period and, in so doing, are able to form a picture of the criminal network in which they are involved. ACLEI, the Integrity Commissioner and the ACC conduct examinations and hearings as part of their special operations and investigations into serious and organised crime or law-enforcement corruption.

As deputy chair of the ACLEI committee, I have had the opportunity to visit ACLEI's offices and see firsthand the facilities they use to conduct their hearings. These hearings are an incredibly important and often used tool in combating crime and corruption. They give ACLEI and the ACC the ability to gain an insight into the way that organised crime works. The information they gain through hearings and examinations may not otherwise be obtained, except through lengthy and complex investigations.

In the last financial year, according to its annual report, ACLEI conducted 17 hearings and served 31 notices to produce information, documents or other such things. In the same period, the ACC conducted 263 coercive examinations. A person cannot refuse to answer a question or produce a document or such thing, in an examination or hearing, on the basis that it might incriminate them or expose them to a penalty. However, there are limitations to the circumstances in which evidence can be used against a person in criminal proceedings. For example, immunity is provided—in ACC examinations—that prevent self-incriminating evidence being used directly as evidence against the person who provided it, but self-incriminating evidence can be used to obtain other evidence that may be admissible against the person.

Several recent court cases have affected the powers of the ACC, Integrity Commissioner and ACLEI to conduct examinations and hearings. These are cases such as: R v Seller and McCarthy, X7 v the Australian Crime Commission, Lee v the New South Wales Crime Commission, and Lee v R. While not all of these cases concern the Commonwealth, they do make decisions about the use of coercive powers by state agencies, which have implications for the ACC and ACLEI.

In the X7 case, the High Court found—by a 3-2 majority—that the ACC was not authorised to examine a person who was already charged with a specific offence where the examination concerns the subject matter of the offence so charged. The key question in this case was whether the powers of an examiner were restricted by the 'right to silence' enjoyed by an accused in criminal proceedings. In the case of Lee v the New South Wales Crime Commission, the High Court considered the principles in the X7 case but found—by a 4-3 majority—that the post-charge examination of a person could be conducted.

Lee's case was distinguished from X7 in that the examination was the result of a court order, and the High Court found that the New South Wales Supreme Court had the discretion not to order the examination. The case of Seller and McCarthy found that evidence given under coercive powers could be unfair and therefore should not be considered in subsequent criminal proceedings. The second Lee case concerned an examination by the New South Wales Crime Commission that took place before the accused was charged with an offence. The High Court unanimously found that the unlawful disclosure of the accused's examination transcript to the prosecution rendered the trial unfair and ordered a retrial.

The limits these cases have placed on the examination powers of these agencies were not intended when the powers were legislated for. For example, following the X7 case, the ACC now no longer examines persons charged with an offence if the questioning touches on related matters. I am sure it was envisaged in the original legislation that the coercive powers of ACLEI and the ACC would not limit a person's right to a fair trial. I am sure it was also envisaged that witnesses coerced into giving answers and producing information or documents would be given appropriate immunity protections.

I do not believe it was envisaged that ACLEI and the ACC would be prevented from examining a person because the matters they are being examined about are the subject of criminal proceedings against them. The legal principle relied on—in the X7 case—is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with 'irresistible clearness'.

The bill that is now before the Senate, the Law Enforcement Legislation Amendment (Powers) Bill 2015, offers this clarity. It is designed to restore the intent of the original legislation. This bill makes amendments to the Australian Crime Commission Act 2002, the Law Enforcement Integrity Commissioner Act 2006 and the Public Interest Disclosure Act 2013. It will clarify the powers of Australian Crime Commission examiners to conduct examinations and the Integrity Commissioner, supported by ACLEI, to conduct hearings.

The ACC and ACLEI are two very important and highly effective agencies when it comes to combating serious and organised crime in Australia. It is estimated that serious and organised crime costs our community some $15 billion a year. Over the last 12 months alone, the ACC has seized more than $23 million in cash, more than $150 million in assets, more than $386 million worth of drugs, and engaged in the disruption of 39 different criminal entities. One of the foremost responsibilities of a government is to protect the safety and security of its citizens. That is why we need to give our law enforcement agencies, particularly those charged with combating the most serious criminal activity, the tools they need to do their jobs effectively. It is also important that extraordinary powers given to agencies like ACLEI and the ACC are also balanced with protections for citizens. I am pleased that this bill contains safeguards that apply to hearings to ensure that they do not affect the fair trial of witnesses. With these protections in place, Labor supports the measures contained in this bill.

I would like to conclude by thanking all those who work in Commonwealth agencies such as the AFP, the ACC and ACLEI for the excellent work they do in tackling corruption in our law enforcement institutions and fighting serious and organised crime. It is a difficult and sometimes dangerous job and one which helps keep our community safe. I commend the bill to the Senate.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I thank the speakers who have contributed to the debate and I thank in particular Senator Collins for outlining the ALP's support for this bill. The Law Enforcement Legislation Amendment (Powers) Bill will ensure that the Australian Crime Commission and the Integrity Commissioner have the powers they need to combat serious and organised crime, foreign fighters and law enforcement corruption. The bill will place the existing powers and practices of the Australian Crime Commission and the Integrity Commissioner on a stronger legislative footing. It will also clarify that the Australian Crime Commission Act allows the Crime Commission to examine people who have been charged with an offence. The bill will also the improve the safeguards in the Australian Crime Commission and Law Enforcement Integrity Commissioner Acts to protect the fair trial of any person questioned, making them clearer and stronger.

I take the opportunity to reply to points raised in the debate by Senator Wright, in particular in relation to why these measures are necessary. These measures will ensure that the ACC and Integrity Commissioner continue to have access to necessary and appropriate questioning powers that allow them to play a vital part in the fight against serious and organised crime, foreign fighters and law enforcement corruption. The powers of the ACC and the Integrity Commissioner to conduct examinations and hearings have been affected by a number of recent cases, including X7 v ACC in 2013 and Lee v R in 2014. In the X7 case, the majority of the High Court found that the Australian Crime Commission Act did not authorise the examination of a person who had been charged with an offence about the subject matter of the charge. In Lee, the High Court unanimously found that the New South Wales Crime Commission's unlawful disclosure of an accused's examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial. These decisions have created significant uncertainty around when the ACC and the Integrity Commissioner can use their coercive questioning powers and disclose information obtained from their use. This bill will respond to these cases by amending the Australian Crime Commission Act and the Law Enforcement Integrity Commissioner Act to place the ACC and Integrity Commissioner's powers on a stronger footing. It will not give the ACC or Integrity Commissioner substantial new powers; rather, it will restore their powers to the way they were originally intended to operate and put them on a clearer legislative footing.

I also address the issue of whether these measures create new powers. The bill does not expand the powers of the ACC or the Integrity Commissioner; rather, it clarifies their powers and practices and places them on a stronger legislative footing. The ACC Act and the LEIC Act have always been intended to authorise post-charge examinations and hearings. The bill will restore the ACC's power to conduct examinations in these circumstances. It will also expressly empower the Integrity Commissioner to conduct post-charge hearings. The acts have also been intended to allow investigators to use examination and hearing material to find admissible evidence for use in prosecutions. The bill will amend the acts so that they specifically provide that the ACC and integrity Commissioner may disclose examination and hearing material to investigators for derivative use.

I also address issues in relation to safeguards, which were also raised in the debate, and most especially how the measures will ensure a person's fair trial. The right to a fair trial is one of the fundamental tenets of our criminal justice system. The ACC and Integrity Commissioner's powers have the capacity to affect the fair trial of a person, particularly if they are questioned post-charge. The bill will make the existing safeguards in the ACC Act and the LEIC Act to protect fair trial rights clearer and stronger. It will do this in a number of ways. Firstly, the bill will more clearly set out the circumstances when an examiner or the Integrity Commissioner is required to issue a direction, particularly where there are ongoing criminal proceedings against the person questioned. An examiner or the Integrity Commissioner must issue a direction to ensure the confidentiality of examination or hearing material and protect a person's safety and fair trial. It is a criminal offence to disclose or use information in contravention of such a direction. Secondly, the bill places specific limits on the circumstances when examination material, hearing material and derivative material can be provided to the prosecution. Where the person questioned has been charged with an offence, an investigator must seek the court's permission to disclose examination or hearing material to the prosecution. Where the examination or hearing occurred after the person was charged with an offence, an investigator must also seek the court's permission to disclose any material derived from the examination or hearing to the prosecution. A court may make an order if it is satisfied that disclosure is in the interests of justice and this would be most likely to occur where the evidence shows that the person is innocent or there are mitigating circumstances. Finally, the bill makes it explicit that courts retain their powers to make all orders necessary to prevent prejudice to the examinee or witness's fair trial. These orders could include refusing to admit evidence, temporarily staying the trial while a new prosecution team is appointed or any other orders that the circumstances require.

I also want to address the issue of what the safeguards are in relation to the conduct of post-charge examinations and hearings. This bill will build on the existing fair trial protections in the ACC Act and the LEIC Act. There are a number of levels of protection. The bill will clarify that an ACC examination can only be used as part of a broader special operation or special investigation. The primary purpose of examinations and hearings is to gather information for the purpose of understanding, disrupting or preventing serious and organised crime and law enforcement corruption. Examinations and hearings can only occur in support of a broader operation or investigation into serious and organised crime activity or a law enforcement corruption issue. In the case of an ACC examination, questioning will need to relate to an operation or investigation that the board has determined is special. An examination or hearing cannot be used solely to bolster the prosecution's case against the person being questioned.

In relation to the need to question: currently, before issuing a summons an examiner must be satisfied that this is reasonable in all the circumstances. Similarly, the Integrity Commissioner must have reasonable grounds to suspect that any evidence given will be relevant to an investigation into a corruption issue. The bill will introduce additional criteria which an examiner and the Integrity Commissioner must consider before summoning a person to attend a post-charge examination or hearing. In particular, the bill will require the ACC examiner to be satisfied that issuing the summons is reasonably necessary for the purpose of the relevant special operation or special investigation, even though the examinee has been charged with an offence. The Integrity Commissioner must also have reasonable grounds to suspect that the evidence, documents or things produced under the summons are necessary for the purpose of the investigation, even though the witness has been charged with an offence.

In relation to disclosure requirements, examinations must be held in private. Hearings are generally held in private. Examiners and the Integrity Commissioner have the power to issue directions to ensure the confidentiality of examination and hearing material. Breaching a direction is a criminal offence. The ACC and the Integrity Commissioner start from the position that a direction should limit disclosure to as few persons as possible. In any case, a direction cannot be disclosed or used if that would prejudice a person's safety or the person's fair trial. The bill will make these requirements clearer. It will also introduce new restrictions on the ability of the ACC, the Integrity Commissioner, and investigators to disclose examination in hearing material to the prosecution. An investigator will need a court order before he or she can disclose post-charge examination or hearing material, or material derived from that material, to the prosecution. The bill does not give new powers to disclose examination or hearing material to investigators or to the prosecution. An agency must already have the ability to do so under existing legislation.

In relation to safeguards, I also want to go to the powers of the court. The bill specifically preserves the powers of courts to make any order necessary to ensure the fair trial of the person questioned; which order is necessary will depend on the circumstances of the case. It could include excluding evidence, ordering a new prosecution team or permanently staying the trial, in the most extreme of cases. Further, the bill retains the existing rules that make examination and hearing material inadmissible in most criminal proceedings against the person questioned.

I also want to address the issue of whether there will be a review of the ACC's power under the ACC Act. Senator Wright raised the question of a review. The ACC Act is currently the subject of an independent review. On 15 May 2015, the government appointed Mr Philip Moss, the former Integrity Commissioner, to review the ACC Act. Under section 61A of the ACC Act, this review must occur every five years. Mr Moss is due to report by 31 October 2015. Amongst other things, Mr Moss will consider the ACC's powers and whether they are appropriate and adapted to the ACC's role in combating serious and organised crime. Mr Moss will consult all relevant stakeholders, including Commonwealth, state and territory ministers on the Inter-Governmental Committee of the Australian Crime Commission; the Parliamentary Joint Committee on Law Enforcement; and ACC board members. In the meantime, these amendments are necessary to ensure that the Australian Crime Commission and the Integrity Commissioner continue to have access to necessary and appropriate questioning powers, which allow them to play a vital part in the fight against serious and organised crime, foreign fighters and law enforcement corruption.

Can I conclude by saying that this bill confirms the powers of the Crime Commission and Integrity Commissioner. It does not expand them. While these are significant powers, they are necessary to counter the growing threat of organised crime and law enforcement corruption. The individuals and groups involved in these activities are sophisticated and adaptive, and are expanding their operations into new markets. Traditional policing methods are an important part of disrupting and dismantling organised crime syndicates. They are also important in catching the corrupt law enforcement officers who enable organised crime to gain a foothold. However, these methods are not enough on their own. To catch the cartel kingpins and to root out corruption, our police must be supported by information obtained under the questioning powers of the Crime Commission and the Integrity Commissioner. This bill will make those powers clearer. It will put the Crime Commission and Integrity Commissioner's collaboration with their partners on a stronger footing, and it will do so in a way that strengthens the mechanisms that protect the fundamental principles of our criminal justice system relating to the right to a fair trial.

The Senate Legal and Constitutional Affairs Legislation Committee has considered the bill and has recommended it be passed. I thank the committee for its work. The Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills have also reported on the bill. I would like to thank all of these committees for their consideration of and comments on the bill. I would like to assure the Senate that—consistent with these reports—the bill contains appropriate powers balanced by appropriate safeguards. The amendments made by this bill are important in ensuring that law enforcement agencies can obtain timely and relevant information, and that they can act on it to protect the Australian community. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.