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Monday, 24 September 2001
Page: 31303


Dr STONE (Parliamentary Secretary to the Minister for the Environment and Heritage) (6:12 PM) —I move:

That the bill be now read a second time.

This bill, the National Crime Authority Legislation Amendment Bill 2001, is an important measure to enhance the effectiveness of the National Crime Authority in combating organised crime.

In particular it will create a significant deterrent to those who seek to obstruct and frustrate the authority's hearing process.

At the same time, the bill contains important accountability measures, notably a role for the Ombudsman and clearer reporting requirements to the parliamentary joint committee on the authority.

The National Crime Authority was established in 1984 as a national law enforcement agency whose purpose was to combat serious and organised crime without the limitations imposed by jurisdictional boundaries.

The continuing support for the activities of the authority from Commonwealth, state and territory governments reflects the important role played by the authority.

The problems caused by serious and organised crime operating across jurisdictional boundaries continue to exist at all levels of society, and it is essential that the authority has sufficient legal authority and operational flexibility to enable it to perform its functions without being hindered or hampered by those whose very conduct the authority is trying to investigate.

It is also essential that the authority is able to operate in an environment that enables the greatest possible flexibility, while at the same time ensuring that the authority remains accountable and responsive.

This bill has been framed to:

implement the government's response to the third evaluation of the National Crime Authority by the Parliamentary Joint Committee on the National Crime Authority, and

address a number of matters relating to the administration and operations of the authority.

The bill was amended in the Senate in response to recommendations from an inquiry into the bill by the Parliamentary Joint Committee on the National Crime Authority.

I wish to pay tribute to the late Peter Nugent MP, who chaired that committee most efficiently and effectively.

While the government disagrees with some of the amendments made in the Senate, it will accept all of them, in the interests of securing the enactment of this important legislation.

The authority's task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation.

If a person refuses to answer a question in a hearing, it has been possible for that refusal to be litigated through the courts, with delays of months or even years.

In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold.

It was for this reason that the bill that was introduced in the other chamber also contained a contempt regime.

The government considers that this would have been an immediate, fair and effective means for deterring and punishing deliberate obstruction of NCA hearings.

However, these provisions were removed in the Senate and the government will not pursue them at this time.

Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest—a few hundred dollars.

This is not much of a deterrent where obstructing the authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking.

Accordingly, the maximum criminal penalty for failing to answer a question at a hearing will be substantially increased under the bill, from six months prison and a $1,100 fine to five years imprisonment and a $20,000 fine.

Other criminal penalties relating to non-compliance with the authority's investigatory powers will be increased to the same level.

The bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing, and for a prosecuting authority to use that derived evidence against the person at a later trial.

In other words, a person's self-incriminatory admissions will not themselves be able to be used as evidence against that person, but will be able to be used to find other evidence that verifies those admissions or is otherwise relevant to proceedings.

However, the bill will specifically provide that once a witness has claimed that the answer to a question might tend to incriminate him or her, then any evidence that the person gives cannot be used against the person in any later trial.

The existing mechanism for a special undertaking by the DPP will not be required as this protection will be clearly set out in the legislation.

In addition, the bill will remove the uncertain defence of `reasonable excuse' for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as intervening event and sudden emergency.

The removal of the defence of `reasonable excuse' will also mean that a witness is no longer able to delay the authority's hearing process by challenging, in the Federal Court, the authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.

The provisions that remove the defence of reasonable excuse, remove derivative-use immunity and increase the penalties for non-compliance with the NCA act are intended to enhance the overall effectiveness of the authority.

It is important therefore to ensure that the amendments have had the desired effect and to this end the bill provides for a review of the operation of these provisions after they have been in force for five years.

This is an important mechanism for assessing the continuing appropriateness of these provisions.

The administrative matters addressed by the bill are designed to improve the operational effectiveness of the National Crime Authority.

The scope of references will be expanded to enable the authority to investigate offences that occur after the date of the reference.

The role of the Parliamentary Joint Committee on the National Crime Authority in relation to access to information held by the authority will be clarified, as will the ability of the authority to disseminate information to overseas agencies.

In addition, the maximum term of appointment of members of the authority will be increased from four to six years, to increase continuity in relation to matters dealt with by the authority.

As a result of a further amendment in the Senate, the class of persons who may issue search warrants will be expanded to include federal magistrates but not state and territory magistrates.

Again, the government will not pursue its preferred option, in the interests of securing the enactment of this legislation.

The bill will introduce the concept of hearing officers, who will be appointed by the Governor-General on the unanimous recommendation of the Inter-Governmental Committee of the National Crime Authority.

The hearing officers will only be empowered to conduct hearings on behalf of the authority, thereby increasing the investigatory capacity of the authority but without expanding the category of `members'.

The bill will also clarify a number of matters such as:

the power of the authority to control who may be present at hearings;

the application of legal professional privilege;

the use of reasonable force in the execution of a warrant; and

the fact that a prohibition on disclosure relating to the authority's process overrides any contrary requirement under the Privacy Act 1988 for so long as the prohibition remains in force.

In relation to the last issue, the bill will insert a note into the Privacy Act 1988 to alert the reader of that act to the requirements of the NCA act.

Minor administrative matters include:

adopting the definition of `document' from the Evidence Act 1995;

including the offences of `money laundering' and `perverting the course of justice' in the definition of offences that the authority may investigate;

replacing references to the chairperson and chairman of the authority with references to `chair' of the authority;


Mr Kerr —That is very important.


Dr STONE —Indeed. Those matters also include:

repealing ambiguous provisions; and

enabling the chair of the authority to delegate certain powers.

In terms of the authority's accountability, a fundamental reform proposed in the bill concerns the mechanism for investigating complaints.

The bill will amend the Ombudsman Act 1976 to extend the jurisdiction of the Commonwealth Ombudsman to deal with complaints against the authority.

The amendments will deem the authority to be a prescribed authority for the purposes of the Ombudsman Act.

This will have the effect of enabling the Commonwealth Ombudsman to deal with complaints against the authority, members of the authority, and members of the staff of the authority.

The amendments will also give the Commonwealth Ombudsman discretion to transfer a complaint to a more appropriate authority (for example, a state agency for a complaint against a state officer) and enable joint investigations.

State and territory authorities will be able to exercise their full powers under governing state and territory laws.

Both are matters within the powers of the Ombudsman in relation to complaints against other authorities or departments.

The amendments made by the bill will result in a more effective and efficient National Crime Authority to grapple with the ever-increasing complexities of organised and serious crime.

This is an important measure, prepared in consultation with states and territories, and which reflects the results of two inquiries by the Parliamentary Joint Committee on the National Crime Authority.

The bill will enhance our capacity to address serious and organised crime at the national level whilst operating within a properly accountable framework.

I commend the bill to the House and I present the revised explanatory memorandum.