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Thursday, 10 May 1984
Page: 1974


Senator GARETH EVANS (Attorney-General) —I seek leave to make a statement, being the Government's response to the report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority legislation.

Leave granted.


Senator GARETH EVANS —I seek leave to incorporate the statement in Hansard. I also seek leave to incorporate the two documents that accompany it, namely, the list of all recommendations by reference to the three groups mentioned and a document headed 'Text of All Recommendations and the Government's Response to Each'.

Leave granted.

The documents read as follows:

Ministerial Statement

On 1 May 1984, the Senate Standing Committee on Constitutional and Legal Affairs delivered its Report on its reference concerning the National Crime Authority Bill 1983 and the National Crime Authority (Consequential Amendments) Bill 1983.

The Report is a particularly helpful and constructive document, showing a keen awareness of the difficulties confronting executive governments in dealing with organised crime, and I am pleased to say that the Government, after discussing the matter with State and Territory Police Ministers and Attorneys-General on 4 May, has decided to accept in very large part the Committee's recommendations.

To implement these recommendations will not, in the view of the Government, undermine the essential framework of the Bill or the effectiveness of the Authority. the proposed amendments that I will today circulate will, if accepted , implement the great majority of the Committee's recommendations.

Of the total of 49 recommendations of the Committee, 31 are supported wholly or without any significant change, and 8 are supported with some modifications. There are only 10 recommendations which, after very careful consideration and discussions with State Ministers, the Government has decided that it would not be able to support.

Included in the first group of recommendations that the Government will support without significant change, are the following:

the Authority should be able to recommend the granting to it of references.

The general functions of the Authority, in situations when it has not received a particular reference, should be more explicitly stated.

the Authority should have the power to arrange for and co-ordinate (if not actually 'create') joint task forces.

The Authority should be given access to information held by the Commonwealth agencies not-withstanding statutory secrecy provisions (subject to limited exclusions, to be scheduled or prescribed).

ALL hearings of the Authority should be private (thus making the proposed special exception to defamation law in relation to public hearings no longer necessary).

Self-incrimination should not be an excuse for failure to produce business records, but should be an excuse in relation to personal records.

The period for appointment of members of the Authority should be a fixed term of 4 years with no renewal (but with the ability to make shorter initial appointments).

Provision should be made for summary applications to a Federal Court judge by persons aggrieved by decisions of the Authority, and legal aid should extend to such matters.

A number of additional matters should be included in the Annual Report of the Authority. (The Government proposes that the Inter Governmental Committee (the ' IGC') should be able to comment on the Report, with these comments being tabled in Parliament).

Explicit provision should be made for transfer of all material held by the Costigan Commission to the Authority.

The second group of recommendations, that the Government will support with modifications, include the following:

The Committee affirmed that self-incrimination should be an excuse for refusal by a natural person to answer questions before the Authority, but this excuse may be removed by an indemnity as to use of the evidence in later prosecutions, provided the indemnity also applied not only to evidence given before the Authority, but also evidence obtained as a direct or indirect consequence of such evidence.

The Government accepts this, but believes, (and was strongly supported by State Ministers in this regard) that such indemnities should be given not by the Authority itself but by the DPP or relevant State Attorney-General or DPP.

The Committee proposed that the definition of 'relevant offence' be rewritten so as to broaden very significantly the jurisdiction of the Authority.

The Government's view, strongly supported by State Ministers, is that while the section can be re-drafted to accommodate some of the Committee's concerns, the jurisdiction of the Authority should continue to be as precisely defined and limited as possible.

The Committee recommended that the Authority be empowered to set out in its annual report any matters on which it had sought references including those rejected.

The Government agrees, with State Ministers, that rejections should be included only if the IGC, rather that the Authority, is satisfied that to do so would not affect the safety or reputation of persons, or prejudice the operations of law enforcement agencies or fair trial.

The Committee recommended that when the Authority executed a search warrant it could seize not only things connected with the Authority's investigations but also things which might assist further investigations by other law enforcement agencies.

The Government takes the view that this is an unjustifiable extension, but seizure of things providing evidence for civil remedies by the Crown arising out of the Authority's investigations should be permissible.

The Committee recommended that the Minister be precluded from giving directions in relation to a particular case.

The Government's view, again supported by the States, is that the Minister should be able to give a direction or guideline as to a particular case, so long as it has the unanimous support of the IGC and that direction is tabled in the Parliament.

The Committee recommended that the law be clarified in relation to access by the Authority to tax information in tax-related matters, and further, that the Authority ought to have general access to tax records in carrying out investigations pursuant to a reference, and that it have a general capacity to pass such information to other agencies for investigative and prosecution purposes.

The Government agrees that certain aspects of the existing law enabling information to be communicated should be clarified, and that the Authority should have some specific capacity to pass on tax information for investigative and tax prosecution purposes. But given the wide potential jurisdiction of the Authority-much wider than existing Royal Commissions-the Government wishes to retain the pre-requisite of a judicial warrant before tax information is required to be passed by the Commissioner to the Authority.

Despite the Government's strongly affirmative response to the great bulk of the Committee Report, there remains a number of recommendations that the Government finds itself unable to accept. The most significant of them are as follows:

The Committee recommends that, where only a Commonwealth reference is involved, the approval of the IGC not be required, although it should be consulted.

State Ministers, while acknowledging that the issue was not likely to be of great practical significance, asserted that this would substantially undermine the co-operative nature of the whole scheme and the Commonwealth could not expect to be put in a special position. The Commonwealth, for its part, recognises that, for the National Crime Authority to be truly effective and able to achieve the desired objectives, there must be full co-operation between the Commonwealth and all States-indeed to date a remarkable degree of consensus has been achieved. In the Government's judgment, the Committee's proposal, limited as it is to matters involving only references by the Commonwealth (and not extending even to 'mixed' Commonwealth and State references, which are likely to be the norm) is more of presentational than substantive significance, and that, in the interests of maintaining harmony and co-operation, it should not be supported.

The Committee proposed that withdrawal of a Commonwealth reference should require an affirmative resolution of both Houses.

The Government's view is that this is an unjustifiable restriction on the role of the Executive. It is proposed, however, that the Minister should be required to publish in the Gazette, and table, any such withdrawal.

The Committee recommended that, when conducting a hearing, the Authority must be constituted by at least 2 members.

In the Government's view, this would impose a severe and unnecessary restriction on the Authority's ability to operate efficiently and expenditiously .

The Committee proposed that the requirements for a judicial audit of the operations of the Authority at no more than 3 year intervals, and the application of the Ombudsman Act should be removed.

In the Government's view, this would remove very important safeguards, and the States were generally supportive of this approach.

The Committee proposed that the name of the Authority should be the 'Australian Crime Commission'.

the Government's view, unanimously supported by the States, is that the name should remain the 'National Crime Authority' in order to emphasise the difference from traditional Royal Commissions and United States-style Crime Commissions.

In the foregoing I have not dealt with a number of somewhat less significant recommendations. Accompanying this statement is a list of all the Senate Committee recommendations by reference to the 3 groupings discussed above. There has also been prepared a further document setting out the text of each recommendation together with a short statement of the Government's response to that recommendation. I seek leave to incorporate these documents in Hansard.

I will also circulate today the amendments that I shall move to give effect to the decisions explained above, to enable Senators to have as much time as possible to study them before debate resumes on the Bill in the week commencing 28 May. Having regard to the very limited time available to the Government to prepare these amendments, it may be necessary to refine them in some respect before the Bill comes on for debate.

The changes that the Government is prepared to make in response to the Senate Committee will not affect the essential framework of the existing Bill, nor will they prejudice the general effectiveness of the Authority and its ability to discharge its functions. Nor do we believe that they undermine the careful balance struck in the original Bill between the needs of law enforcement on the one hand, and the need on the other to respect the civil liberties of individuals to ensure that there are no unjustifiable intrusions on those liberties.

The Government thanks the Committee once again for the care, speed and sensitivity of its work, and readily accepts that the adoption of its recommendations, subject to the modifications and qualifications set out in this response, will improve the legislation now before the Parliament.

List of all Recommendations by Reference to the Three Groups Mentioned

RECOMMENDATIONS ACCEPTED WITHOUT SUBSTANTIAL CHANGE

1, 4, 5, 6, 7*, 8, 9, 11, 12*, 13, 14*, 16, 18, 21(a), 23, 24, 26, 27*, 28*, 30 (a), 32, 32, 34*, 35, 39*, 40*, 41, 44, 45*, 46, 47, 48

RECOMMENDATIONS ACCEPTED WITH MODIFICATION

2, 3, 10, 21(b), 22, 25, 29, 30(b), 42

RECOMMENDATIONS REJECTED

15, 17, 19*, 20*, 31*, 36, 37, 38, 43, 49

(*) Indicates recommendations of a less significant nature not specifically referred to above.

Text of all Recommendations and the Government's Response to Each

(references to amendments are references to amendments to the National Crime Authority Bill unless otherwise indicated)

1. (a) The Bills should be explicitly framed to clearly set out the function, powers and abilities of the Authority at both its ordinary and special levels of operation.

(b) The Bills should lay down a clear mechanism by which there can be a transition from the exercise of powers and functions at the ordinary level to their exercise at the special level of operations, including an ability in the Authority, of its own volition, to recommend such transition (paragraph 1.19).

Accepted: In so fare as the recommendation urges differentiation between the functions, powers and abilities of the Authority at the 2 levels, this is only clarification of the existing Bill. In so fare as the recommendation proposes that the Authority may recommend transition from one level to another, that is, recommend that a reference be granted to it, the Government, with the support of State Ministers, agrees. (As to paragraph (a) of the recommendation see proposed amendment (9), as to paragraph (b) see proposed amendment (8)).

2. Paragraph (c) of the definition of 'relevant offence' should be deleted ( paragraph 2.7).

3. (a) The definition of 'relevant offence' should be redrafted so as to require the National crime Authority to direct its activities to offences which appear to be connected with one another, involve several offenders, substantial planning and organisation and the use of sophisticated methods and techniques.

(b) The Authority should be required to then give particular consideration to types of offences, similar to those set out in paragraph (a) of the definition of 'relevant offence'. These should be set out in an illustrative, not exhaustive, manner (paragraph 2.9).

Accepted: The Committee's proposal would result in the definition of 'relevant offence' being rewritten so as to broaden very significantly the jurisdiction of the Authority. The Government's view, which was strongly supported by State Ministers, is that while the section could be redrafted to accommodate some of the Committee's concerns, the jurisdiction of the Authority should continue to be as precisely defined and limited as possible (see proposed amendment (2)).

4. Clause 10 of the Bill should be redrafted to ensure that when the Authority is investigating relevant criminal activities, whether or not under a term of reference, it has the responsibility for ensuring the collection and assembly of admissible evidence (paragraph 2.22).

Accepted: This function was previously restricted to the stage when the Authority had been given a reference and the Authority was specifically instructed to exercise this function. State Ministers did not object to the extension which will add to the effectiveness of the Authority (see proposed amendment (9)).

5. The Bill should be redrafted to set down the Authority's ordinary functions and to provide the necessary specific power for it to perform those functions ( paragraph 3.9).

Accepted: This represents a clarification of this aspect of the existing Bill ( see proposed amendment (9)).

6. The Bill should be redrafted to enable the Authority as an ordinary function and of its own volition to investigate matters and to collect and analyse information and intelligence relating to relevant criminal activity (paragraph 3 .11).

Accepted: This represents a clarification of this aspect of the existing Bill ( see proposed amendment (9)).

7. The ABCI should not be subsumed within the Authority at this stage. The Committee strongly urges co-operation, consultation and, where provided under their respective charters, exchange of intelligence between the two bodies ( paragraph 3.14).

Accepted: This recommendation which merely confirms the existing provisions was strongly supported by State Ministers (see proposed amendment (9)).

8. The Bill should be redrafted to provide: (a) that it is a function of the Authority to create Federal task forces and to co-ordinate and supervise investigations by such task forces into 'relevant criminal activity';

(b) with the concurrence of the States concerned, for the creation and co- ordination of joint Federal and State or multi-State task forces (paragraph 3.20 ).

Accepted (with minor modification): The Committee's recommendation, if literally applied, would seriously override the responsibilities of Police Commissioners and other persons responsible for participants in Task Forces. The Government proposes therefore that the function in relation to Federal Task Forces would be limited to 'arranging for' and co-ordinating Task Forces (see proposed amendment (9)).

9. The Bill should be amended to empower the Authority to require the transfer to it of information held by any other Commonwealth agency (paragraph 3.22).

10. (a) In the light of the secrecy provision contained in clause 43, which protects the regime of secrecy attaching to necessarily confidential information held by Commonwealth agencies, the Bill should be amended to provide that the various secrecy provisions in Commonwealth legislation preventing the disclosure of information held by Commonwealth agencies should be subsumed within the secrecy provision governing the Authority;

(b) provision should be made for a strictly limited range of exemptions in such areas as defence and security, to be listed in a Schedule to the Act; and

(c) there should be further provision for the exemptions in the Schedule to be waived by order of the Executive Council, when the Authority is operating under a term of reference and can satisfy the Executive Council that it needs exempt information (paragraph 3.26).

Accepted (with minor modification): The Committee's proposal if taken literally would present problems in implementation; for example, the role proposed to be given the Executive Council would not be appropriate for that body.

The Government proposes- that the authority may issue summons or notices to Commonwealth agencies requiring them to produce documents or information subject to reasonable excuse (which would encompass matters such as prejudice to security and would thus avoid the need to spell out the equivalent detailed provisions of the FOI Act); and

that this provision would prevail over the secrecy provision of existing Acts except such provisions as were scheduled or subsequently prescribed (see proposed amendment (13)).

11. The Bill should be redrafted to provide for the Authority, in exercising its ordinary functions and powers, to receive from the Commissioner of Taxation information relevant to taxation or tax-related offence (paragraph 3.31).

Accepted (with minor modifications): The legislation should not go beyond existing law as to what information could be given to Authority in so far as it was enforcing taxation law or protecting the revenue (see National Crime Authority (Consequential Amendments) Bill proposed amendment (1)).

12. The Bill should be redrafted to provide the Authority with the power necessary to enter into arrangements with State instrumentalities, private institutions and persons to receive information from them (paragraph 3.34).

Accepted: State Ministers wished any arrangements to be made with State Governments rather than with agencies of those Governments and the Government agrees to this minor modification (see proposed amendment (13)).

13. The Authority should retain a law reform function in the terms of the Bill, which limits proposals on reform to the range of matters arising out of the performance of its other functions (paragraph 3.38).

Accepted (see proposed amendment (9)).

14. Recognising the force of the constitutional and practical constraints which favour the involvement of the States with the Federal Government in combatting relevant criminal activity, the Committee recommends the continuation of an Inter-Governmental Committee (paragraph 4.9).

Accepted (no amendment required).

15. Clause 11 of the Bill should be amended to require consultation with the Inter-Governmental committee, rather than its approval, before the Commonwealth Minister refers to the Authority a matter relating to a relevant offence against a law of the Commonwealth or of a Territory (paragraph 4.11).

Not accepted: The Committee recommends that where only a Commonwealth reference is involved the approval of the IGC would not be required but it should be consulted; the Ministers' meetings was strongly opposed to such a change; State Ministers, while acknowledging that the issue was not likely to be of great practical significance, asserted that it would substantially undermine the co- operative nature of the whole scheme and the Commonwealth could not expect to be put in a special position; the Government recognises that, for the National Crime Authority to be truly effective and able to achieve the desired objectives , there must be full cooperation between the Commonwealth and all States and indeed to date a reasonable degree of consensus has been achieved between Governments. In the Government's judgment, the Committee's recommendation, limited as it is to matters involving only references by the Commonwealth, is merely of academic or hypothetical significance and in all the circumstances the Government has concluded that the recommendation should not be implemented (no amendment).

16. The Bill should be redrafted to make it clear that the effect of a State refusal to concur in the grant of a reference is limited to impending investigation of relevant State criminal activity wholly occurring within that State's jurisdiction (paragraph 4.14).

Accepted: This represents clarification of the existing Bill) see amendment (7) ).

17. The withdrawal of a Commonwealth reference before it is competed should only be allowed upon the passing of an affirmative resolution of both Houses of the Federal Parliament (paragraph 4.18).

Not Accepted: State Ministers supported the Commonwealth view that this was an unjustifiable restriction on the role of the Executive; the Minister will however be required to publish in the Gazette and table any withdrawal (see amendment (10)).

18. (a) The States should be encouraged as a matter of urgency to enact legislation conferring on the Authority a range of coercive powers available for the investigation of State offences under terms of reference similar to those coercive powers available for the investigation of Commonwealth offences conferred by the Bill on the Authority.

(b) The enactment of such reciprocal legislation should not be a precondition for the establishment and functioning of the Authority (paragraph 4.22).

Accepted: This represents the Commonwealth's view that, for the Authority to exercise coercive powers in relation to State offences, State underpinning legislation will be required. State Ministers on 4 May sought Commonwealth assistance in the preparation of such legislation (no amendment involved).

19. Clause 9(2) should be redrafted to provide that the Inter-Governmental Committee, before approving reference of a matter to the Authority, shall take into account whether ordinary police methods of investigation into the matter are likely to be effective (paragraph 4.28).

Not accepted. The existing Bill requires Inter-Governmental Committee to be satisfied that ordinary police methods of investigation are not likely to be effective. Ministers on 4 May concluded that this is an essential requirement which in appropriate cases would be satisfied with no real difficulty (no amendment).

20. (a) The operation of sub-clauses 8(7), which provides for electronic voting by members of the Inter-Governmental Committee should be limited to cases of urgency or unanimity.

(b) Sub-clauses 8(2) and 8(3) should be amended to provide that the Minister, the member of the Inter-Governmental Committee, can attend through a ministerial colleague whom he delegates, rather than, as is presently provided, through any person (paragraph 4.33).

Not accepted. Commonwealth and State Ministers on 4 May concluded that the existing provisions of the Bill met a real practical need having regard to the exigencies of Ministerial life. In any event, the suggested restriction as to electronic voting to cases of urgency was almost meaningless because the majority of those voting would determine whether a matter was urgent (no amendment).

21 (a) The Bill should be amended to specifically empower the National Crime Authority to request a meeting of the Inter-Governmental Committee to seek a reference on an area of relevant criminal activity. Clause 46(6) should be amended so as to allow the Authority in this context to put before the Inter- Governmental Committee such information as it considers necessary to argue the case for a reference.

(b) Provision should be made for the Authority to set out in its annual report any matters on which it has sought references 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 the fair trial of a person who may be charged with an offence (paragraph 4.39).

Accepted as to (a). As to (b) modification is required.

As to (a): It is reasonable that the Authority would be able to request a meeting of the IGC to seek a reference and in so doing put forward matter that, contrary to sub-clause 46(6) of the Bill in its present form, would prejudice the reputation of persons, but the IGC would not publish the matter further (see amendment (8)).

As to (b): Ministers on 4 May concluded that the IGC rather than the Authority should determine whether disclosure of the matters would affect the safety or reputation of persons or prejudice operations of law enforcement agencies or a fair trial (amendments (57) and (58)).

22. Clause 24(2) of the Bill should be amended: (a) by deleting paragraph (b), which requires the Authority to set out as far as reasonably practicable the general nature of the matters in relation to which it intends to question a person;

(b) by deleting the proviso to sub-clause (2) which allows the Authority to question a person called as a witness in relation to any other matter that the Authority is authorised by a reference to investigate (paragraph 5.9).

Accepted: The Government accepts that para 24(2)(b) will need to be rewritten to make clear that it is for the guidance of the Authority only and will not be the basis for technical legal objections. This would appear to meet the substance of the Committee's concern (see amendments (30) and (31)).

23. Where a witness properly claims that the answer to a question or the production of a document or thing may incriminate him, the Authority itself should expeditiously determine whether it will require that answer, document or thing, but where it does abrogate a properly made claim of privilege the appropriate indemnity should operate. A person aggrieved by a decision of the Authority should be granted an adjournment to seek judicial review of the existence of reasonable grounds for the recognition of the privilege (paragraph 5.16).

Accepted: In so far as it proposed that an indemnity would abrogate an objection on the grounds of self incrimination, it is consistent with the existing Bill (see amendments (44) and (45)).

24. The privilege against self-incrimination should be recognised only if claimed by natural persons (paragraph 5.22).

Accepted: Consistent with existing Bill (see amendment (44)).

25. In the case of oral testimony by natural persons, the privilege against self-recrimiantion should be recognised. A discretion to abrogate the privilege and compel the giving of answers should be vested in the Authority. Such abrogation should be accompanied by the grant to the witness of a use derivative use indemnity in relation to the use of such evidence in any criminal proceedings against him. The abrogation should carry no indemnity in relation to civil proceedings (paragraph 5.34).

Accepted with modification: In so far as the recommendation is that an indemnity to abrogate the exercise of self-incrimination should be granted by the Authority, the Government differs from the Committee. A decision as to grant of indemnity should be made by a high officer outside the Authority able to take into account wider considerations. In the case of Commonwealth offences, this should be the DPP; in all State offences the relevant State Attorney-General ( see amendments (35) to (43)).

26. The Bill should define the concepts of 'record of a business' and 'record of a financial institution' and require natural persons who are subpoenaed to produce such records in their pissession, without recognition of any claim based on the privilege against self-incrimination (paragraph 5.41).

Accepted (see amendments (1) and (44)).

27. The Bill should be amended to provide for a notice to produce procedure, requiring a witness to produce relevant documents to a designated officer of the Authority at a time and place specified in the notice (paragraph 5.45).

Accepted: Provided the witness is entitled to the same privileges and excuses as would be available to him if he produced the documents to the Authority in the course of a hearing, the procedure has merit (see amendment (13)).

28. A section should be inserted in the National Crime Authority Bill in similar terms to section 6A (3) of the Royal Commissions Act 1902, which provides in effect that, once a person has been charged with an offence and that offence has not been finally disposed of, that person may refuse to produce a document or thing or to answer a question on the ground of self-incrimination ( paragraph 5.49).

Accepted: This will be consistent with section 6A (3) of the Royal Commissions Act (see amendment (44)).

29. The Authority should have access to taxation records for the purpose of carrying out investigations under a reference. This access should be obtained in the same manner as applies to Commonwealth agencies and Royal Commissions already designated in s.16 of the Income Tax Assessment Act for the purpose of administering their laws. The information so obtained should be able to be further passed over for use in the preparation of prosecutions and civil remedies claims (paragraph 5.60).

Accepted with modification: The existing Bill provides for access by the Authority to taxation information under a warrant granted by a judicial officer. This represents a necessary safeguard having regard to the implications, so far as the privacy of individuals is concerned, of access to taxation information. While the Government will adjust the existing provisions of the Bill to remove a practical difficulty identified in consultations with the Committee, it does not believe that it should remove the requirement for a judicial warrant or the existing requirement that taxation information should be usable only for criminal intelligence and not as evidence for prosecutions. It will, however, amend the Bill to enable the Authority to pass the taxation information to other law enforcement agencies for criminal intelligence purposes (see National Crime Authority (Consequential Amendments) Bill amendment (1)).

30. (a) Clause 18 (1) (a) should be amended to provide that, where the Authority has reasonable grounds for suspecting that at that time, or at some definite future time within the one month life of the warrant, there is likely to be upon any land or upon or in any premises, vessel, aircraft or vehicle etc some relevant thing, it may apply to a judge for a warrant.

(b) The provision should be further strengthened by providing in sub-clause 18 (6) that the Authority can deliver to the Attorney-General, or to law enforcement agencies, seized evidentary material, not only which may afford evidence for a prosecution or the taking of civil remedies, but also which may assist in further investigations by these agencies (paragraph 5.65).

As to (a) accepted.

As to (b) accepted with modification: In the Government's view (which was strongly supported by State Ministers), it would be oppressive to permit seizure of material merely relevant to inquiries by other law enforcement agencies. The Government will, however, extend the existing provision to seizure evidence for civil remedies arising out of the Authority's investigations (see amendments (14 ) to (17)).

31. The Authority should be empowered to apply to a judicial officer for an order to arrest a person where there are reasonable grounds for believing that the person is about to leave Australia to avoid giving evidence to the Authority (paragraph 5.72).

Not accepted: The Government believes that the existing provisions of clause 20 enabling the seizure of the passport of a witness suspected of intending to leave Australia are sifficient and the moe draconian procedure sugggested by the Committee cannot be justified. The State Ministers supported this view (no amendment).

32. The Bill should be amended to provide that all hearing of the National Crime Authority should be held in private (paragraph 6.15).

Accepted: This is not essentially inconsistent with the theme of the existing Bill. State Ministers were generally supportive (see amendments (19) to (21)).

33. Clause 21 (15) of the Bill should be deleted from the Bill and the traditional defence of fair and accurate report of proceedings should be allowed if public hearings are permitted (paragraph 6.20).

Accepted: Having regard to the Government's decision as to recommendation 32, the provisions referred to in this recommendation are unnecessary (see amendment (26)).

34. When the Authority has ordered that evidence be held in confidence, a trial judge may, in his discretion if he considers that a finding as to the guilt or innocence of the accused may turn on that evidence, direct the Authority to make the evidence available (paragraph 6.26).

Accepted: State Ministers agreed (see amendment (24)).

35. Clause 29 (1) should be amended to provide for fixed terms of four years for members of the National Crime Authority with no provision for renewal. In addition, provision should be made upon the Authority's establishment to stagger the terms of office of members, so as to enable continuity of experience and leadership (paragraph 7.10).

Accepted: The provision will permit initial appointments of up to 4 years so that appointments of all 3 members do not terminate at the same time (see amendment (48)).

36. Clause 21 (2) should be amended to require that when conducting hearings the Authority should be constituted by at least two members (paragraph 7.16).

Not accepted: This would represent a serious and unnecessary impediment to the effective and expeditious working of the Authority. It means that the Authority could only have one hearing at a time throughout Australia. State Ministers were strongly of the same mind (no amendment).

37. Clause 47, which provides for a judicial audit of the Authority, should be deleted from the Bill (paragraph 8.7).

Not accepted: The Government believes that judicial audit is a necessary and effective safeguard. State Ministers were of the same mind (no amendment).

38. Clause 44, which provides for the Ombudsman Act 1976 to apply to the National Crime Authority, should be deleted (paragraph 8.12).

Not accepted: The Ombudsman is another effective safeguard against unjustifiable and oppressive intrusions on citizens' rights.

State Ministers were supportive (no amendment).

39. Clause 48 (2) (b) should be amended to include after the words ' a description' the words, 'including by way of statistics . . .' (paragraph 8.16).

Accepted (see amendment (56)).

40. A new paragraph 48 (2) (f) should be added to the Bill, requiring the Authority's annual report to detail the number and outcome of appeals and other judicial proceedings concerning the Authority (paragraph 8.18).

Accepted: While accepting the recommendations, State Ministers urged (and the Commonwealth agreed) that the IGC should have an opportunity to comment on the Report and that these comments should be tabled together with the Report (see amendment (55)).

41. The National Crime Authority should be empowered to recommend the tabling of its report on a reference in the Parliament (paragraph 8.22).

Accepted (see amendment (53)).

42. (a) Clause 16 should be amended so as to make it clear that, in furnishing guidelines or giving directions to the Authority, the Minister is precluded from so doing in relation to a particular case.

(b) Sub-clause (3) of clause 16 should be amended so as to require the Minister to table a copy of the directions or guidelines in the Parliament within 15 sitting days of their publication in the Gazette (paragraph 8.30).

Accepted with modifications: The Government's view, strongly supported by the States, was that there could be exceptional cases where the Minister could appropriately give a direction to the Authority in a particular case. To provide for this, the Government will amend the existing provision to require the unanimous support of the IGC before the Minister gives a direction in a particular case (see amendment (12)).

43. Clause 46 (1), (2) and (3) should be amended to remove the ability of the Minister of the Commonwealth or of a State to require the Authority to provide information concerning a specific matter in relation to its operations, where the provision of such information could prejudice the safety, or reputation or fair trial of persons, or the operations of law enforcement agencies (paragraph 8.32).

Not accepted: The view of the Government and of the Ministers is that such a provision would diminish the requisite Ministerial control (no amendment).

44. (a) The Bill should be amended to provide a person aggrieved by a decision of the Authority with a right of summary application to a judge of the Federal Court or of a State Supreme Court for redress of his grievance. It should be specified in the Bill that this remedy will replace an existing right to remedy under the Administrative Decisions (Judicial Review) Act 1977.

(b) If there is a dispute as to the Authority's right to have subpoenaed documents in its possession, the Bill should provide for them to be sealed and placed in the custody of the appropriate court official, pending the outcome of any application for a remedy against the Authority (paragraph 8.39).

Accepted (see amendment (50)).

45. The Bill should authorise the Commonwealth Attorney-General or the Special Minister of State to make agreements similar to those provided under the United States Organised Crime Control Act for the protection of witnesses (paragraph 9. 2).

Accepted (see amendment (47)).

46. (a) The provision of the Bill relating to legal professional privilege in clause 25 (3) should be maintained, but it should be made clear that the privilege is to operate on the narrow basis set down in the recent High Court decisions in Baker v Campbell and Grant v Downs.

(b) Disputes as to the existence of a claim to legal professional privilege should be settled by way of summary application to a judge of the Federal Court or of a State Supreme Court. During the hearing of such applications, any documents the subject of dispute should be sealed and placed in the custody of the appropriate court official pending the outcome of the application (paragraph 9.8).

Accepted: As to (a) while accepting that legal professional privilege should be maintained, the Government does not think it appropriate to define the privilege which has been fully explained in recent High Court decisions (as to (b) see amendment (45)).

47. Clause 23 should be amended to widen the range of tribunals in respect of appearances before which financial or legal assistance may be granted by the Attorney-General (paragraph 9.12).

Accepted (see amendment (27)).

48. Provision should be made in the Bill for the transfer to the National Crimes Authority of all materials and information held by the Royal Commission into the Activities of the Federated Painters and Dockers Union and of criminal intelligence gathering by the Office of Special Prosecutor Redlich (paragraph 9. 19).

Accepted (see amendment (49)).

49. The title of the agency to be established under the Bill should be the ' Australian Crime Commission' (paragraph 9.23).

Not accepted: The meeting of Ministers unanimously concluded that the name should remain the National Crime Authority in order to emphasize the difference from traditional Royal Commissions and United States Crimes Commissions (no amendment).


Senator GARETH EVANS —I also table a total of five other documents, all of which will be circulated immediately to honourable senators in their offices. They are : Amendments and new clauses to be moved by the Government to the National Crime Authority Bill; an explanatory memorandum on those amendments and new clauses; a document entitled 'Amendments to be moved to the National Crime Authority ( Consequential Amendments) Bill; an explanatory memorandum about that; and, finally, a black letter memorandum to assist honourable senators in fighting their way through the jungle. Some of the latter documents have only just come to hand but they will be circulated immediately to honourable senators. I seek leave to table all the documents.

Leave granted.


Senator GARETH EVANS —I move:

That the Senate take note of the statement.