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Monday, 4 June 1984
Page: 2445

Senator DURACK(6.00) —The Senate is considering one of the most important matters that have come before it in recent times; namely, the Government's Bill to establish what it calls the National Crime Authority, a body which is to be created by this Parliament to tackle the grave problem of organised crime and official corruption in Australia. I think it is a rather sad reflection on the performance of this Government over the last 12 months that it is necessary for the Senate to debate this matter at all. About two years ago the Fraser Government, of which I was then Attorney-General, was given the responsibility of considering as a matter of urgency the need for a National Crimes Commission. During the middle months of 1982 a great deal of work was put into establishing a National Crimes Commission. Towards the end of 1982 this Parliament passed a Bill for an Act to establish a National Crimes Commission. That major initiative of the Fraser Government was taken because of the great volume of evidence that had come to hand over a period up till 1982-and as a result of royal commissions that had been held, particularly those of Mr Justice Williams into drug trafficking, of Mr Costigan on the activities of the Federated Ship Painters and Dockers Union and of Mr Justice Stewart into the Clark syndicate and related matters. In addition to those inquiries there were the reports of joint task forces, which were also a major initiative of the Fraser Government in combating the menace of organised crime and corruption in this country.

The weight of evidence provided by those investigations and reports which I have mentioned made it quite clear that two years ago there was a real threat to our way of life in the shape of organised crime. It was organised crime on a national basis, not having regard to the traditional methods of law enforcement in this country based on the State police forces and the Australian Federal Police, with their limited role to play, and naturally not having regard to State boundaries or Federal or State jurisdictions or laws. It maximised its activities on a national basis, maximised profits and maximised to the hilt the diversified nature of criminal investigation and law enforcement in Australia.

It has never been suggested by the present Opposition-when we were in government or since-that there should be any wholesale supplanting of the traditional criminal laws and system of administration of criminal justice in this country, or of police investigations. They have proved to be adequate, and will continue to be adequate for the great run of criminal activity and the enforcement of criminal laws. But what they did not take into account-this was quite clear when we began this investigation two years ago-was that we were faced with a new problem. Mr Redlich, the Special Prosecutor, made a major contribution to this debate when he said:

What is required is a national response to a national issue. A robust, independent national Authority, unfettered by jurisdictional or bureaucratic constraints must be created.

That statement was made by Mr Redlich some time after the period I am speaking about, two years ago, when the Fraser Government with me as Attorney-General, launched this study and development of a National Crimes Commission. As I said, this Parliament accepted the proposal put to it, albeit with some amendments, by the Fraser Government. As a result of the passage of that legislation through this Parliament it became an Act and a chairman designate in the person of Sir Edward Williams-a Justice of the Supreme Court of Queensland and a man who had himself been chairman of an important royal commission into drug trafficking in Australia-was selected. He had not been formally appointed, nor had the Act been proclaimed, when the Fraser Government lost office on 5 March 1983. We had there , over one year ago, an adequate and effective instrument to make a national response to a national problem, as Mr Redlich would call it. The personnel had already been selected and had started work on setting up the Crimes Commission. That was the situation when the present Government took office and the present Attorney-General (Senator Gareth Evans) assumed responsibility for the national menace of organised crime. We know the pathetic history of this Government and its Attorney-General during the next 12 months or more.

We have before us a Bill which is quite inadequate for the intended purpose. In fact it is a Bill which can be seen to satisfy only the response that the Attorney-General gave when interviewed on the Sunday program on 16 October last year when Mr Richard Farmer asked him about his proposals for a crime authority. This was when all the backing and filling was going on between seminars and Caucus committees and when other delays were occurring. Mr Farmer asked the Attorney-General: 'Do you expect that you will end up with an authority?' Senator Gareth Evans said: 'I think we will end with something'. That sums up the pathetic response of this Government to the menace of organised crime. When this Bill, the National Crime Authority Bill-which is a classic example of the pathetic response of this Government-was introduced at long last into the Parliament in November last year I moved that it be referred to the Senate Standing Committee on Constitutional and Legal Affairs for inquiry and report as to whether the Bill fulfilled effectively the objective of investigating organised crime and official corruption. I am pleased that the Senate supported that reference. Before it was prepared to debate the Bills it very wisely referred them to the Senate Standing Committee on Constitutional and Legal Affairs.

On 1 May this year, in accordance with the requirements of the reference to it, the Standing Committee on Constitutional and Legal Affairs reported on the Bill to the Senate. The Senate Committee worked under great pressure during the months from November to the end of May, bearing in mind that this period took in the Christmas period and the holiday season. I congratulate the Committee on the quality of the magnificent work that it did as well as the speed with which it carried out its task. The Committee entirely confirmed the fears and concerns that I and the Opposition expressed in relation to the Government's Bill. I will just briefly refer to its conclusions. The Chairman of the Committee, Senator Tate, on 1 May made the following statement:

The Committee has concluded generally that the Bills which were presented to the Senate had grave defects or omissions. Fundamental change is required to the legislative framework upon which the Authority is to operate.

Later on, he said:

The general concern of the Committee has been to free the Authority as much as possible from undue dependence on Governments for the initiation or direction of its activities.

I think that was a very damning comment of an all party committee which was chaired by Senator Tate, a Labor senator from Tasmania. This was the judgment of the Senate Committee on this Bill. As I have said, this Bill is a product of backing and filling by the Attorney-General and the Hawke Government over many months last year. They struggled amongst themselves before coming up with some response at all to the problem despite the fact that they inherited a perfectly good National Crimes Commission with distinguished and effective personnel in the shape of the chairman. This body would have been operating over 12 months ago had they followed what had been done by the Fraser Government and, indeed, by this Parliament. So we are now faced with considering the Bill in the light of that report of the Senate Committee.

The Government has considered the report of the Senate Committee. The Committee made 49 recommendations for changes to the legislation of which the Government has agreed to 31 either wholly or without significant change. The Government says that it will support eight more with modifications. However, it has rejected outright 10 of those recommendations. That is really the major problem with the Government's response. Although statistically the Government's offer to adopt 39 out of 41 recommendations might look quite impressive, the fact of the matter is that the Government's response has to be judged by the importance of the Committee's recommendations which the Government had not decided to accept. Specifically, it has rejected important recommendations of the Committee in regard to veto powers that the committee of Ministers are going to have over the activities of the Authority in relation purely to breaches of Federal law which have nothing to do with the States at all. It has rejected recommendations about an inadequate definition of what are relevant offences that the Authority can investigate. It has also rejected recommendations which were designed to limit further political manipulation of the Authority in relation to directions which it may be given by the Attorney-General.

Without going into detail at this stage, the position is that the Government's response to the Committee's report is totally inadequate. It is in line and consistent only with the wishy washy weak-kneed attitude which this Government has adopted towards this national problem that requires a national response of a firm character. However, the Opposition has come to the conclusion on giving consideration to the Bill and the Senate Committee report, that in fact the legislation needs to be strengthened even further than the Senate Committee itself has recommended.

I will mention some of the amendments that the Opposition proposes to move in order to make the Authority an effective body. The Opposition has given very close regard to what Senator Missen said in his dissenting report. Senator Missen said:

Unless the deficiencies of the present Bill are remedied, it would be better not to create a crime authority which would only deceive the public expectation.

That is very serious comment by a senator who has studied this matter very closely. The Opposition has given due weight to that view as well. We have, of course, on many occasions spoken about what we regard to be the problem and the response to it. We believe that the only effective national response to the problem of organised crime is the creation of a new body by this Parliament which can act independently, firmly and fearlessly with the necessary resources which can be provided only by the Federal Government. It is because of that requirement that we see the enormity of the problem and the necessity for such a firm response. We are not just disappointed with the Government's response; we are very deeply concerned about it.

Such a body, of course, must also be absolutely free of political control and interference. When we judge the Government's response in the shape of this Bill by those standards we can only conclude that what the Government proposes in its response is a weak, bureaucratic and cumbersome body which could be subject to gross political interference and manipulation. I have already given notice of some 40 amendments to the Bill, all of which are designed to improve and strengthen it in some shape or form. Of course, we see some of those amendments as being very vital to the ultimate judgment which Senator Missen has posed. We have to face the question: Will this Authority do more harm than good if it goes through unamended, as the Government has proposed? We believe that some of our amendments are absolutely vital on the question of that judgment which we will have to make during the Committee stage.

We will, of course, support the second reading of this Bill because we are very much in favour of the principle of such a body. However, as I have said, we have made our own judgments about the inadequacy of this Bill. Our own judgments have now been thoroughly confirmed by the judgment of the Senate Committee. We are much impressed by almost all of the recommendations of that Committee. I, and other senators on this side of the chamber including, I am sure, Senator Chipp on behalf of the Australian Democrats, will be moving amendments which we believe are vital for the future success of this important operation which is to be established to fight organised crime.

The Opposition has drawn up some 40 amendments and I do not propose to go through them in this second reading debate. However I will outline the principal amendments. First there is an amendment which will enable the National Crime Authority to act on its own initiative in the investigation of purely Federal offences, exercising the full coercive powers that it is given, without any reference from any government, State or Federal. This is the only really effective way to eradicate the potential for political manipulation of such an authority. That was a major feature of the National Crimes Commission proposed by the Fraser Government and accepted by this Parliament less than two years ago .

Secondly, we propose to widen the definition of offences which may be investigated so that these will be confined in general terms in the way the Senate Standing Committee on Constitutional and Legal Affairs suggested in its report. The Senate Committee referred to the need for a better definition of ' relevant offence':

It would be better if the definition of 'relevant offence' were 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.

The Authority should be required to then give particular consideration to types of offences similar to those defined as 'relevant offences'. These should be set out in an illustrative, not exhaustive manner.

That is a very important proposal in the Opposition's opinion because if the legislation confines, hog ties the Authority to specific offences, the sort of people it will be investigating will use all the resources they have at their disposal-Queen's Counsel and challenge after challenge through the legal system. Defining it in that way would be a golden opportunity for these people to frustrate and destroy the investigative powers of the Authority.

I have already mentioned the third matter that we wish to see, and that is the removal of the veto that can be exercised by the Committee of Federal and State Ministers upon reference to the Authority of a purely Federal question by the Federal Attorney-General. We believe that this is an incredible limitation upon the ability of the Authority to act in the investigation of Federal crime. It has no place in legislation of this kind. It has nothing whatever to do with preserving the Federal system or anything else because the Federa Attorney- General of this Parliament cannot insist upon investigations being made into a breach of a purely State law. That must always be a matter for the State itself or the State Attorney-General to determine unless the State itself gives to the Authority that broad authority in respect of its own laws. The fact that this Parliament would tie down the Federal Attorney-General of the day not to be able to give a reference to the Authority in respect of a possible breach of Federal law is, I believe, quite untenable.

Senator Missen —Abandonment of constitutional responsibility.

Senator DURACK —It is an abandonment of responsibility by the Government. We would also want amendments to remove the present limitations of the Bill which permit references to the Authority only if ordinary police methods of investigation are not likely to be effective. This again could lead to endless and fruitless arguments and delay before action can be taken. We want to see amendments to do away with the extraordinary new proposal of the Government which requires that only police officers can interview suspects outside formal hearings of the Authority. This seems to me to severely contain the work of the Authority and its officials.

We would want to ensure that the Attorney-General could not give directions in any particular case, which is another major recommendation of the Senate Committee. Of course if an Attorney-General can give directions in a particular case that is a potential for political interference. We also believe that the number of members of the Authority should be expanded from three to five to enable two highly skilled and competent people to be appointed in the field of investigation and criminal activity. They should have a knowledge of methods of investigation of criminal activity. These should be in addition to the nominees of the State Attorneys-General and police Ministers. As the Authority is presently proposed it would have three members, only the Chairman being appointed by the Federal Government, the other two being nominees of the State Attorneys and police Ministers. We believe it is a very good feature of the Bill that it is giving a position on the Authority to nominees of the States, but we believe that it is necessary for the Authority to have additional independent experts on it.

We believe that there should be amendments to prevent the withdrawal of a reference unless approved by resolution of both Houses of Parliament. We believe there should be, as the Senate Committee recommends, a minimum of two members of the Authority present at any formal hearings. We oppose the provisions in the Bill for a judicial audit of the Authority or for the Commonwealth Ombudsman to be able to investigate complaints. There again, we accept the views of the Senate Committee, the reason being that by using these powers the people who will be investigated by the Authority could frustrate its work. However, we do believe there should be an external means of reviewing the work of the Authority and we propose an amendment for a joint committee of this Parliament to monitor and review the performance of the Authority.

We believe that if those amendments are agreed to we will have a very valuable, powerful and effective means of fighting the menace of organised crime and official corruption in this country. We support the Bill at this stage in the hope that at the Committee stage honourable senators will support at least the major amendments that we propose and which we think are necessary. We hope that in that event, despite the delays and backing and filling of this Government, and its weak response to the problems faced, the Bill which emerges from the Senate will be effective in meeting the major challenge of organised crime and will be an instrument of which this Parliament can feel proud.

Sitting suspended from 6.28 to 8 p.m.