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Thursday, 4 October 1984
Page: 1179


Senator MISSEN(10.35) —This cognate debate on the Judicial and Statutory Officers (Remuneration and Allowances) Bill, the National Crime Authority (Status and Rights of Chairman) Bill and the Joint Statutory Committee on the National Crime Authority covers a number of matters relating to the National Crime Authority. Although I will not cover a number of the matters already mentioned by Senator Durack, I support strongly what he said and the attitude taken by the Opposition to these proposals. In particular, the whole question of the rather unnecessary provision concerning the title of a judge has arisen because of the 'crash or crash through' operations of the Attorney- General (Senator Gareth Evans), who failed to discuss these things properly with State authorities before this situation arose.

I want especially to deal with two other matters. The first relates to the proposal that has come from the House of Representatives to set up the monitoring committee, the Joint Statutory Committee on the National Crime Authority. According to the requirements of the National Crime Authority Act, the Committee was to be set up as soon as practicable after the Act came into operation. The act came into operation in June and now is not 'as soon as practicable'. Such a delay is in clear breach of the Act. Notice of the motion to set up the Committee was given on 11 September in the other House and was debated only some time after midnight one day ago. That was after I had given notice in this chamber that I intended to move for the setting up of the Committee but in terms slightly different from those proposed in the House of Representatives. In that House the Government had proposed that the Joint Committee of 10 would consist of three Government and two Opposition members of the House of Representatives and three Government senators, one Opposition senator and one Australian Democrat senator. For some reason the Government saw fit to require not only that it have the chairmanship and therefore a casting vote and general control of the Committee but also six out of the 10 members. Fortunately it was made clear to the Government that neither the Liberal and National Party Opposition nor the Democrats would accept that. It is essential that the Opposition in this Senate, which has taken a most constructive and constant interest in the National Crime Authority and the way it is set up, be properly represented. The proposal that has now come from the House of Representatives adopts the proposal in the motion of which I gave notice some two days ago and provides that there will be two Opposition senators, two Government senators and one Democrat on this important committee.

The Committee should have been set up long before this. We have gone through a period in which not only have the general workings of the Authority caused some worry but also the handover from the Costigan Royal Commission of Inquiry on the Activities of the Federated Ship Painters and Dockers Union to the new Authority has been a matter of constant concern to this Parliament. It is a disgrace that the Joint Committee has not been in a position before now to meet and talk with Mr Costigan and the new members of the Authority. It needs to ascertain what are the problems and see whether it can make some recommendations that could help in ensuring, and this is the important point, that the investigations which remained uncompleted by Mr Costigan-investigations which were stopped by this Government on 30 June, which are now not going ahead in public hearings-are quickly resumed. The position is that inquiries, and in respect of which the National Crime Authority at the moment has no authority to demand evidence, or use its coercive powers are at a standstill because the inter-Governmental Committee has not yet met and so has not given any references whatsoever to the Authority these matters need to be brought to a conclusion. All that the new Authority can do at the moment is what you, Mr Deputy President, or I can do-ask people, make inquiries and knock on doors. It cannot require the production of documents or anything of that sort. It is a crisis situation in which irreparable harm may well be done as a result of the folly of this Government, and I put it as low as that.

The Committee is to be set up. It must meet very quickly and do what it can, in a number of ways, to help the situation. The Committee must try to see what repair can be done to the inefficiency of the changeover which is taking place, but also it has to do other things. It has to look at the question of the powers which this Authority has been given and at the suggestions which even the Authority has made that there should be some changes to those powers. Last night in this chamber in the adjournment debate I spoke because I wanted to draw the attention of the Senate immediately to an article which appeared in yesterday's Melbourne Herald concerning an interview by Peter Game with the members of the new Authority.

I do not intend to repeat what I said at more length last night. The Attorney- General, although he was advised that I was speaking on the subject last night, did not choose to be in the chamber or to reply to the criticisms that I made. I trust that he will take the opportunity-he is not concentrating on this matter at the moment-in his speech in reply to indicate whether I am right in my view that the members of the Authority, unfortunately, have misunderstood their powers and are not yet aware of the grave restrictions which are imposed on them . I invite honourable senators to look at the detail of that criticism which I made in my speech last night. As I quoted from the Herald last night, the members of the Authority have come to a conclusion that they certainly do not intend to be lackeys of any government. They are to be independent and intend to remain independent. As I said, I applaud that sentiment, but I fear that their high hopes of their ability to expose any attempt by the Inter-Governmental Committee or governments to frustrate their actions will fail. The article reported Mr Justice Stewart, after making that declaration of independence, as saying:

Nonetheless, the commissioners already have sought an amendment to their Act which could have the effect of making political interference less likely-they want the legislation changed to compel the Inter-Governmental Committee (IGC) to give reasons when it vetoes a particular investigation.

That is probably a very good proposal. What the judge and the other members of the Authority do not appreciate apparently is that for them to get reasons from the Inter-Governmental Committee is not much use if they cannot be made available to the public. The burden of my speech last night was to draw attention to the fact that they cannot, by just holding public sittings for the purpose of discussing the general work of the Authority, go ahead and disclose that they have been refused a reference from the Inter-Governmental Committee, the reasons why they have been refused a reference and that they are frustrated from going on with that inquiry. This is a deficiency in the Act. I draw the attention of honourable senators and the public to the real restrictions that are imposed in sections 60 and 61 of the Act. Section 60 deals with the power to have public sittings and bulletins to discuss the general conduct of the Authority's operations. There too was a very significant proviso which the Government put into the Act. It was not part of the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs which looked into the Act . Sub-section (5) says:

The Authority shall not-

(a) divulge in the course of a sitting held under sub-section (1); or

(b) include in a bulletin published under sub-section (4), any matter the disclosure of which to members of the public could 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 width of that is enormous. Any such statement about a reference or its refusal must be concerned with the reputation of a person-to take just one segment in that clause-and, therefore, as the Act is presently phrased, the Authority cannot and would not dare to discuss it openly in public sittings. The same point arises when the members of the Authority come to make their annual report under section 61 of the Act. The Senate Committee made reference to the width of that annual report, but the Government did not accept it because it included-I regret to say that this went through the Parliament; certainly it did not go through with the Opposition's support-sub-section (5) which states:

Where the Inter-Governmental Committee resolves that the inclusion in a report by the Authority under this section of particulars of the outcome of a request made by the Authority under sub-section 10 (1)-

that is in regard to a reference being sought-

might prejudice the safety or reputation of a person, the operations of law enforcement agencies or the fair trial of a person who has been or may be charged with an offence, the Authority shall not include in such a report particulars of the outcome of the request.

Is it not perfectly clear that the Inter-Governmental Committee can refuse such a request? We may change the Act and say that a reason has to be given to the Authority, but the committee can write to the Authority and say certain particulars may not be reported. Any reference must influence and must deal with the reputation of a person, otherwise what is a reference about?

Something I did not mention last night but which I wish to draw to the attention of the Senate are the recommendations in the report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill, and in my minority report, which in substance were adopted by the Opposition with one exception. One of the Committee's recommendations was 4. 39, which is to be found on page 44 of the report of the Senate Standing Committee on Constitutional and Legal Affairs into the National Crime Authority Bill and which states:

(b) Provision should be made for the Authority to set out in its annual report any matters on which it has sought reference from the Inter-Governmental Committee, including those which were rejected. Such information should be so set out, however, only if the Authority is satisfied that to do so will not affect the safety or reputation of persons, or prejudice the operations of law enforcement agencies or fair trial of a person who may be charged with an offence.

What this Government did was say that the Authority could not determine such a matter, but the Inter-Governmental Committee could make its demands and require the Authority not to reveal information. That is the very important difference. So the Senate Committee's recommendation was there not adhered to. I had some criticism to make in my minority report of the recommendation. I made a more lengthy criticism of the restrictions which the Committee recommended should be imposed on public hearings. In dealing with that matter I said:

Recommendation 4.39 (b) is subject to the same criticism I make in respect to public hearings.

What did I say about public hearings? I said that they were useful in themselves but they did not answer the real problem. I do not say here that the Opposition supported me in my general views about public hearings, but in this regard I went on to say in the report:

The Majority Report (paragraph 6.8) points out that it is generally conceded ' that the provisions of the Bill make it extremely unlikely that many hearings would be conducted in public or, if they were, that publication of the proceedings would ensue'. I would put it even more strongly. Since clause 21 (7) requires the hearings to be in private 'if the taking of that evidence in public might prejudice the safety or reputation of the person . . .' (my emphasis), no Authority could risk the accidental damage to anyone's reputation.

My comments were similar to those in the recommendation made by the Senate Committee, which was fundamentally changed by the Government in its Bill to ensure that it could leave with the Inter-Governmental Committee that power of direction over the Authority to stop it from exposing in public attempts which were being made to frustrate it in its actions. I take that case as a particular example of the need for the Joint Statutory Committee on the National Crime Authority. Fortunately the Australian Democrats, including Senator Chipp, supported the recommendation I made in my minority report that there should be a joint committee. I am sorry they did not support other recommendations, but at least we achieved that.

The establishment of the Committee is a vital feature of the way in which this Parliament can continue to see whether the Authority is aware of its powers, whether its powers will be properly amended and whether such amendments will cover the essence of what powers are lacking in order to approach the public, in cases where the Authority is being frustrated perhaps by the actions of a State government or by members of the inter-governmental committee acting in concert and probably in private. Therefore, I welcome very much the fact that the Joint Committee will now at last be set up. It must come together very quickly to look into these matters and also to take the opportunity to ensure that what it can do will facilitate matters and make members' jobs easier.

As honourable senators know my view is that the present outlook for the real defeat of organised crime is hopeless. Obviously, we have to change the Act very substantially in the future if organised crime is to be defeated. In the meantime, this Joint Committee has a lot of work to do in helping to facilitate the Authority's work and in drawing to the attention of the Parliament deficiencies which members of the Authority cannot draw to the attention of the public. Therefore, I welcome the fact that the Government has at last got off its slow course of deliberate delay so that quite obviously this Committee would not effectively be in operation until after the election. But that Committee will go on. It is provided for under the Act. It will therefore have a task which is not just for this Parliament. In future years it will also have the very important task of ensuring that we make the best endeavours we can to deal with the serious problem of organised crime in Australia.