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Thursday, 20 September 2007
Page: 132

Mr RUDDOCK (Attorney-General) (11:06 AM) —I thank the honourable members who have contributed, the members for Brisbane, Denison and Werriwa. I thank the opposition for the support that has been given to this measure. The Australian Crime Commission Amendment Bill 2007 clarifies that the commission examiner can record reasons for issuing summons or notices to produce before, at the same time as or as soon as practicable after a summons or notice has been issued. The amendments also validate summonses and notices issued by examiners prior to the commencement of the bill where reasons were recorded subsequent to their issue. Further, the amendments validate summonses or notices that fail to comply with technical requirements. I note that the Minister for Justice and Customs will be writing to the Chair of the Parliamentary Joint Committee on the Australian Crime Commission to invite the committee to review these amendments after they are made.

I say to the honourable member for Werriwa that this matter came to notice in a judgement on 23 August. We are dealing with issues that have arisen in less than 30 days. In terms of the broader reporting and suggestions that there may have been some awareness of these issues before that decision, the understanding I have is that the examiners were certainly not aware of that. Two of them are former judges who have formed the view that the validity of the documentation that they were party to authorising would not be brought into challenge. It is in the context of the particular decision that this matter has been pursued. The view was that these matters were of such importance, particularly the Wickenby investigation, that to allow that prosecution or that examination to fail on what appear to be merely technical grounds—not issues of substance—would leave us all exposed and cause more abundant caution. These issues are being pursued now and I assume that is the reason that the opposition is supporting them. Obviously we are concerned that the committee should be involved in reviewing the amendments after they are made. If some deficiency is found or if there is a need identified for further amendments, the government would consider those findings.

Let me, hopefully, deal with the issues that have been raised. If they are not, I will draw them to the attention of the minister. The member for Brisbane asked the government to justify why the ACC sought to have two subpoenas for Mr Brereton struck out in that case. The first point I would like to make is that the government—and this is the course that I have taken and I expect my colleague would take—does not interfere with operational decisions in relation to bodies. I do not do it with the AFP. I do not do it with the Director of Public Prosecutions. They are independent agencies. I think it is important, and I think the Australian public would think it is important, that the government does not interfere in the operational decisions made by the ACC or its examiners. If they were being given political direction, I think that would be a matter of concern.

The ACC reports to a board. That board consists of federal, state and territory police commissioners, among others. It was established deliberately at arm’s length from day-to-day ministerial control. But the government in this case has received advice from the ACC on the handling of the particular case. The ACC considered that the reasons for the issue of the summons were not relevant to the prosecution of the non-compliance charge. However, Justice Smith rejected the ACC’s view; thus the reason for the legislation.

Criticism was raised at the haste with which this bill has been dealt with. We were not prepared to allow this issue to remain unresolved and for serious crimes potentially to be unaddressed because of what was a purely technical argument—that is, about whether reasons had been recorded before or later. It was not about the validity of the reasons or the substance of the issues that were being raised but the mere technical point about when those reasons were recorded. We considered that it was appropriate to have the matter dealt with by the parliament this week; however, we have also demonstrated an ongoing commitment to parliamentary review. The Minister for Justice and Customs has announced that he will ask the parliamentary joint committee to review the amendments after the event and, if later changes are merited, he intends to pursue them, subject to whatever other matters might intervene.

The member for Brisbane asked the government to advise whether reasons for issuing summonses were usually recorded by examiners before or after the event. I am told that the practices in relation to the issuing of summonses and notices were determined by examiners individually. However, the ACC advises that, before the Brereton decision, in over 90 per cent of the cases the reasons were recorded by examiners after the issuing of the notice or summons. This was based upon the legal assessment that sections 28 and 29 of the act allowed the urgency of issuing a summons or notice in many cases and the desire to prepare detailed and thorough reasons. However, since the Brereton decision and pending these amendments, decisions, I am told, have been recorded prior to issue.

I might say that from time to time I have been in situations where I have been asked to make decisions with a degree of urgency, particularly in matters where there is a concern that evidence might be tampered with or dealt with, where one wants to proceed as quickly as possible to ensure that it is secured and where, because of the complexity of the issues that are canvassed, after you have taken the decision you start to document your reasons. I am not saying that it should always be the case, but I can understand how in particular cases that might be so.

The only further point I would make is that past, current and future ACC examiner practices can be looked at in detail as part of the parliamentary committee inquiry and, if it forms another view, those issues can be raised. But I do make the point that there can be circumstances in which the urgency of the matter, particularly in relation to preserving evidence, can mean that you have to act very quickly.

The member for Brisbane sought from me undertakings to direct examiners, when they record reasons for issuing a summons or notice after the event, to also record reasons for that delay. I simply make the point that I do not think it is open to me, nor do I think it would be appropriate, to direct ACC examiners in how they exercise their powers. However, the ACC is conducting a detailed review of practices in this area and will be further briefing the Minister for Justice and Customs on the issues raised in that review. The idea of recording reasons for delay in recording reasons for the issuing of a subpoena, summons or notice can be considered further in that context, with due regard to the operational realities and advice that we receive.

The member for Denison expressed concern that the Brereton decision and its implications were not drawn to the attention of the parliamentary committee. I think in the comments I made earlier I raised the reasons for urgency. But, despite the complaints that have been made, I am pleased that the opposition has agreed that this bill does need expedited passage. The minister has announced that he will ask the PJCACC to look into the area of law and practice, so the committee can I think have further examination of these issues.

Criticism has been expressed about the retrospectivity of parts of this bill. The member for Denison referred to those matters raised by the Law Council and the Democrats. The government’s view—and we have been quite open about this—is that it does involve retrospectivity, and we flagged this clearly in the second reading speech in each chamber and in the explanatory memorandum. The effect of the retrospectivity is to ensure that summonses to produce documents or notices to appear issued by the ACC examiner in the past are not invalidated by a failure to record reasons before the issuing of the summons. We believe that trials for criminal offences should turn on the facts and the evidence—the issues of substance. Some of these offences involve the most significant and severe issues of law breach, and I think the community would see a failure to pursue those matters—particularly given the quantum of money that is involved—as being a real concern if it were only because of a technical reason. If a summons or notice yielding probative evidence were seen to be struck down simply because reasons were not recorded before a summons or notice were issued, but only afterwards, I think the public would see it in that light.

The amendments do leave the substantive safeguard in place; that is, a person can still challenge the validity of a summons, notice or resulting evidence if there is not, in the argument, a proper basis for the issuing of the document and adequate reasons for the issuing of it. The member for Werriwa criticised poor practices in the ACC for failing to record reasons before the issues. As I said before, two of the examiners are former judges who took the view that it was legally open and appropriate to record the reasons after the event. In the light of the findings by Justice Smith, who took a different view, the ACC is reviewing the practices in this area and has ensured that the judge’s view is complied with. I noted earlier the prospect of the PJCACC being able to look at these matters.

The amendments are to clarify that the ACC examiner may record the reasons for issuing a summons or notice to produce as soon as practicable after the summons or notice is issued. It will address potential operational difficulties for the ACC arising from the finding made by Justice Smith in the Victorian Supreme Court in ACC v Brereton that, for a summons to be valid, reasons for issuing a summons must have been issued prior to the time the summons was actually issued. Ensuring that summonses and notices issued prior to these amendments are not invalidated simply for reasons recorded after they were issued will address potential problems arising from the findings in Brereton in relation to current operations, investigations and prosecutions that are before the court. Allowing a person to appear before or to supply a requested document to an examiner who is not the same examiner who issued the summons or notice to produce will address circumstances where the examiner who issued the summons or notice is on leave, ill or otherwise unavailable.

The government does not consider that a failure to record reasons for the issuing of a summons or notice prior to the issue of the summons or notice should give a person who would otherwise have been convicted of an offence a technical ground on which to challenge the admissibility of evidence and escape responsibility for their actions. This bill will ensure the validity of evidence obtained by the ACC in carrying out its functions. It is still subject to very important procedural safeguards. By advancing this bill, the government is ensuring that the ACC is not unduly hampered in the performance of its key role in investigating and prosecuting serious and organised crime in Australia. I commend the bill to the chamber.

Question agreed to.