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Monday, 4 June 1984
Page: 2448


Senator HILL(8.00) —The Senate tonight is debating a most important piece of legislation to be set up for this country a National Crime Authority. The subject is becoming very familiar, particularly to those of us who contributed to the debates last year that resulted in the former Government' s Bill being passed to set up a National Crimes Commission which, of course, did not come into being after the change of government. It is familiar to those of us who participated in the present Government's mini-summit on organised crime in this country also held last year. Of course, it is also familiar to those of us who contributed to the consideration of this Government's proposed National Crime Authority by the Senate Standing Committee on Constitutional and Legal Affairs.

I have spoken twice on this subject in the last few months in the Senate. I spoke to the motion to refer the Government's National Crime Authority Bill to the Committee to which I have just referred. I saw in the Government's Bill what appeared to be a number of significant deficiencies. I thought the proper course of action was for it to be referred to the Committee. That course of action was adopted by the Senate. I contributed to the Committee's consideration of the matter and when the report was put down a few weeks ago I spoke to that report. On that occasion I attempted to explain to the Senate how the Committee took the Government's Bill and from that Bill attempted to find a proper balance, in the Committee's judgment, between a body which had the potential to be effective, on the one hand, but with a minimum loss of traditional personal liberties and protections and with minimum further invasion of personal privacy on the other hand.

As I said, I indicated to the Senate on the last occasion why I believed that the Senate Committee found that correct balance. The Government took the Committee's report back to the inter-governmental committee of Ministers and then put down, in the recent past, a report of its consideration of the Senate Committee's report. I admit that, at first blush, I was disappointed with the Government's response. It appeared to me that a number of major deficiences identified by the Senate Committee had failed to be adopted by the Government in its report. However, on that occasion, I did not have the opportunity to speak.

What has now happened is that we have a whole series of Government amendments to consider. We are therefore debating the second reading of the National Crime Authority Bill in light of numerous Government amendments which we know will be put in the Committee stage. In that light, tonight I want to go back again to the same questions of balance. The questions that the Senate Committee addressed on looking at the Government's former Bill are now the same questions which must be addressed on the basis of the Government's Bill together with the whole series of amendments that it proposes to put to the Committee of the whole. Those questions are: Does the Authority, if it is set up on that basis, have the potential to be effective? Secondly, if we decide that it does have that potential, does it result in a loss of traditional civil liberties and common law protections any more than is absolutely necessary? Associated with that question is whether it impinges upon the privacy of the individual also any more than is absolutely necessary.

The first aspect in the balancing process which I wish to address is the question of the potential of this Authority to be effective. I think three steps have been found to be necessary in the course of development of the debate in determining whether or not such an authority has the potential to be effective. The first that we have learnt from the experience of the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union is that, to be effective, the Authority must have sufficient access to information. I think, the real experience of Mr Costigan has been the importance of following what has become known as the money trail. Organised crime is all about the making of money. If it is possible to trace and follow those funds, it is possible from that, to develop an identity of organised crime that is responsible for the production of illicit gains. The first question we have to ask ourselves is: Will this Authority have sufficient access to information?

The second question is whether it will have the ability to extract from that information intelligence; by that I mean information that is relevant in this context in isolating the structure of the organised criminal activity. So Mr Costigan again, to use that example, gathers a great mass of information. However, only a portion of that information becomes relevant for further consideration. That is referred to by Mr Costigan and those who develop such systems as the necessary intelligence.

The third question is: After one has got to the stage of building the intelligence that will indicate the structure of the organised criminal activities, can that information or that intelligence be used in a way so as to build a case for the prosecution either through a civil action or through a criminal action. I think that another of the experiences that we have learnt from Special Prosecutors Redlich and Gyles and from the experiences of other royal commissioners has been that simply to gain the intelligence is insufficient. The intelligence must be in a form that is capable of being admitted as evidence in a subsequent court if we are going to achieve our goal of retarding organised crime in this country.

The second of those questions, the one relating to the extracting of intelligence from the mass of information, is not really a question for debate tonight. It is really a question of resources and a question of building up proper systems and adequate personnel to do the necessary job. What I think is of critical importance, however, in this debate, is to look at the first question and the third question, that is, the question of access to information and the question of gaining evidence and intelligence in evidentiary form to see whether the body has not only the power to do that but also to see at what cost if the body is given that power. One thing I certainly do not want to see come out of the exercise is simply to replace one evil in Australia with another. I wish to look, firstly at the capacity of this body as envisaged to gain sufficient information. A number of matters that the Government has agreed are largely matters that have arisen out of the Committee's report I think are particularly worth noting. First, we should be aware that the Government has agreed that a natural person may be compelled to produce his business records. A natural person may not be able to claim privilege against self-incrimination in order to avoid the production of business records. This is a significant extension of normal access to information. (Quorum formed) This is an important subject and it is worthwhile that more honourable senators, particularly Government senators, are now present to participate in this debate. As I was saying, this body will have access to business records in a way which has not been envisaged before. It will not be possible for a natural person to claim privilege in the production of business records. Furthermore, such business records may be utilised in subsequent prosecution or become admissible in a civil cases.

The Government agreed to make it clear that this body can carry out investigations without a specific term of reference. The Committee thought this was particularly important in the initial stages of gathering information, and it may be particularly important in the commission or authority, no matter what it is called, going to an intergovernmental committee to seek a reference. That body would not be able to do so efficiently unless it had a capacity to gather information of its own motion in the first instance. This was unclear in the Bill in the first instance and has now been made clear. In deciding whether the body will have sufficient ability to gather information necessary to do the job, it is important to note that the Government has agreed to amend the Bill to empower the Authority to require the transfer to it of information held by any other Commonwealth agency. Through all the royal commissions, through the evidence given to Costigan, and also in relation to the McCabe-Lafranchi report the message comes through loud and clear that it is not easy to get information from government departments. In some instances there is good reason. The Bill now makes clear that departments will be obliged to produce that information to the Authority and that will become particularly important. That is subject to one reservation from the point of view of public intest privilege, which does not concern me. It is also subject to reservations in relation to tax-an issue that causes me some concern.

On the subject of tax, the Authority will have greater powers than might otherwise be imagined. In the redrafting form it will have power in exercising its ordinary functions and powers to receive from the Commissioner of Taxation information relevant to taxation or tax-related offences. From my personal point of view I would have gone further. I believe that it should not be so limited to taxation and tax-related offenes. Nevertheless, the present consensus appears to be that that is taking the matter far enough. Certainly it goes much further than some would have imagined. The Government has accepted the recommendation that the Authority should be empowered to enter into arranements with State instrumentalities to gather information. That is important for obvious reasons. Organised crime is not limited by State boundaries. State instrumentalities may well have information that is necesary to build the intelligence which, in turn, is necessary to identify the web of organised crime involved. The Authority will also have power to enter into arrangements with private bodies or persons to gather information. That, too, is important.

The Government has accepted that the privilege against self-incrimination should be recognised only if claimed by natural persons. It will have wide power to gain evidence from corporations, particularly evidence of business dealings of a corporation that will enable the Authority to follow the money trail. There has been some doubt as a matter of law whether this has been possible in the past. That issue has now been clarified. A notice to produce procedure has been provided, which will greatly facilitate the obtaining of information from documents. The procedure envisaged in the past has been somewhat cumbersome. Certainly that applies to the procedure which Costigan had to employ to conduct the affairs of his commission. The procedure will be simplified and should make for more efficient gaining of information. The body will be able to compel incriminatory testimony and the production of personal records on the granting of a use derivative use indemnity. This will allow for the further building of basic information and also for the testing of that information. Most honourable senators will now be aware of the basic procedure of calling peripheral witnesses and, if necessary, giving them a limited indemnity in order to build a case about the major parties involved in organised crime. The Committee advised a more flexible system of warrants, and I am pleased to see that suggestion has been adopted.

On what the Government has agreed, the authority has power to go a long way towards making it an efficient information-gathering mechanism. I do not say it has gone a sufficient way. In fact, I want to run through a number of failings which in my view still exists in the information gathering mechanism, some of which I hope can be amended in Committee. The first relates to relevant offence. The definition of relevant offence becomes critical from the start of the exercise because it will limit the capacity of the intergovernmental committee in giving references. The Government definition of relevant offence is, in the opinion of the Committee, too restrictive when it attempts to identify a particular crime. We believe that it will simply provide a way out. For example, the Committee raised the subject of arson. I have grave doubts whether arson, which the Committee was advised is utilised by organised crime in this country, is adequately covered by the definition. Similarly, it is questionable whether SP bookmaking, which provides much of the cash flow to organised crime in this country, is sufficiently encompassed in the definition. The Committee did not object to the listing of crimes, but said that they should be listed in an illustrative way rather than in an exhaustive way. I believe that definition needs improvement, and I trust that it will be improved at the Committee stage.

I have already briefly mentioned the subject of taxation. I would have liked to see the Bill go further in this area. I have said that in an ordinary stage of investigation it should not be limited simply to tax breaches, but also at the further stage when the body has been given a specific reference, information from the Commissioner of Taxation may only be used as intelligence and not in civil actions and criminal prosecutions as evidence. I know this attitude has been accepted in our system for a long time, but it is becoming somewhat illogical that much personal information held by government departments will be made available to be used in evidence, but not tax records. The traditional argument has been that if one does not so provide, the criminal will not give honest information in his tax return. I regard that argument as naive. An organised criminal is no more likely to give honest information in his tax return than he is in relation to his other business and personal dealings. I was disappointed that the recommendation of the Committee to allow a judicial officer to issue an order to arrest a person who appears to be leaving Australia to avoid giving evidence was not accepted by the Government. The Committee has good information put to it by royal commissioners that this had occurred to the detriment of the gaining of information. I submit that the procedure providing simply for seizure of passports is insufficient. Criminals of this status seem to have little difficulty in finding other passports.

Therefore, with these reservations I believe the authority has been given reasonable power to gather information. To that extent it has been given the capacity for the potential to be effective. If the authority has sufficient information and can turn it into relevant intelligence, one asks whether it has now the capacity to build sufficient evidence that is admissible and can be used in a court against an organised criminal who has been identified. In that regard I acknowledge that it has been agreed by the Government that this Authority shall have power to set up task forces which will no doubt be particularly helpful at the investigatory stage. That evidence was put before the Committee. It appears to be beyond dispute. I note that a corporation will not be able to claim self-incrimination privilege. That will facilitate the gathering of admissible evidence, not simply basic information. An individual will not be able to claim the privilege of self-incrimination in relation to business records. That will not only facilitate gathering of information but also the building of a case comprising admissible evidence.

I note also that evidence obtained after the granting of an indemnity will be able to be used for civil proceedings. That is an important advance in that the Authority will be able to gain evidence that is capable of being utilised in a court. For those and a number of other reasons which I do not have time to go into tonight it appears to me that not only will the Authority have the potential to get information, it will also have the potential to build a case from that information. That leads to a balancing of considerations. Has it gained that potential at a cost that is too great; that is, is the cost too great in the loss of common law protections that have been built up over hundreds of years and in the invasion of privacy?

In that regard I note first that the use of coercive powers, which concerns us all, will be limited to investigation under a term of reference. It is the advice of the Committee that a government should be forced to make a decision, to make a stand, before this body assumes particular coercive powers. I believe that is wise and I support it. Secondly, it will not be able to conduct public inquisitions. This has concerned me in the past. I am pleased that the Committee came down on the side that public inquisitions, the short-cuts that we see in some of the American crimes commissions, will not become part of the system within Australia. I think that will be important from the point of view of protecting basic civil liberties.

Thirdly, as I mentioned before, a natural person will not have to answer incriminating questions without an indemnity. The Committee recommended a use derivative use indemnity; in other words, it said that the indemnity should relate to what is immediately said and that information gained information derived from what is said. The Committee therefore said that there is a point in giving indemnity only if we give an effective indemnity. That is being taken up by the Government. I think that is a safeguard that is worth particular notice in this balancing procedure.

Fourthly, the streamlined procedure to a judge that was recommended to the Committee in the event of alleged abuse has been adopted. There was good evidence put to the Committee as to the value of that practice. I am pleased that that is there; it is another safeguard that is worth noting. Also, a person charged with an offence will be able to refuse to answer or produce documents. I think that would have been obvious. It was covered in the Royal Commissions Act but it was not in the original Bill.

Therefore, whereas there will certainly be some loss of traditional protections in the form of coercive powers, which has to be of concern to us, and there certainly will be some further invasion of privacy, particularly in relation to public records, business records and the like, it nevertheless appears to me that there have been restraints and that the balance, bearing in mind the extent of the evil of organised crime that has been found, is reasonable.

There are two further major reservations that I wish to mention. I trust there will be amendments to the Bill at the Committee stage. Both go beyond the subjects that I have been covering and relate to the role of the intergovernmental committee and its responsibility to give references. The first was mentioned by Senator Durack before dinner. it is the States' insistence on retaining a veto over purely Commonwealth references. I believe that for this body to be effective there must be co-operation between the States and the Commonwealth. There must be co-operation from the State police forces. As I have said, organised crime does not stop at State boundaries. We know from what we have been told that matters such as SP bookmaking, which are State offences, are used to fund the importation of narcotics, which is a Commonwealth offence.

Thus having a co-operative scheme is important if this body is to be effective. Nevertheless, to take that to the extent of saying that the States should have a veto over a Commonwealth reference on breaches of purely Commonwealth laws is an abdication of responsibility in which I believe the Commonwealth should not engage. I cannot see that from a State point of view it is really anything more than pigheadedness. It is impossible to imagine any circumstance in which a State could reasonably say that it would not want a Commonwealth investigation to take place into a breach of Commonwealth law. If it is purely pigheadedness I trust that that provision will be amended in the Senate and that upon reconsideration the States will accept that the provision does not go to the core of co-operative federalism which is necessary for this body to work effectively. I am pleased that the States, we are told, recognise the need for complementary legislation to support the coercive powers that have been given to them by Commonwealth law. I think that is a positive sign. I hope that positive attitude from the States will continue after this Bill has been amended, as I trust it will be, so that the Commonwealth will have power to give its own references.

The second matter that causes me particular concern is that the intergovernmental committee will not be able to give a reference unless it is satisfied that the matter cannot be handled by police using traditional methods. Again, I am not suggesting any malicious intent on the part of the police forces , but it is not surprising that a police force will want to argue that it is able to carry out a law enforcement function within its State or within the Commonwealth. It happened in the case of the Federated Ship Painters and Dockers Union. That is worth remembering. The Victorian police force stated in all honesty that it believed that was a matter that was under control. New methodology showed, in fact, that a whole massive crime network was below the surface and had not been identified. Decisions like that, made in all innocence, could hinder the efficient operation of this body. I hope that that will not be the case. How can this problem be overcome? The Committee gave the lead when it said that certainly the intergovernmental committee should take into account whether the matter can be handled by police forces using traditional methods but the decision should not be dictated by that consideration and certainly the onus should not be placed in the other direction. I hope that that provision will be amended at the Committee stage. I will move an amendment at that stage to that effect. I think it is worth mentioning when one is touching upon the subject of the attitude of police forces that there appears to have been a change of attitude in recent years. The Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union is now getting good support from all police forces. We understand, for example, with regard to the Australian Bureau of Criminal Intelligence that State police forces now feel more confident and are contributing information. Evidence that was put before the Senate Committee appeared to indicate that the fear by police forces of this body usurping their functions has lessened over the years. Most police forces now accept that there is a function that a new body with new powers can fulfil in meeting the evil of organised crime which simply has not been met adequately in this country.

Therefore, in conclusion, I say that I believe that the Bill and the Government 's amendments have gone a long way towards producing a body that has the potential to be effective. I would argue that the legislation has not gone sufficiently far and I have mentioned some of the areas in which I trust the Bill will be amended at the Committee stage. Senator Durack before dinner mentioned some other provisions that I believe also require amendment. With those amendments, I believe that the body to be formed will have the potential to be effective. Certainly it will be at a cost to civil liberties and personal privacy but, on balance, bearing in mind the extent of organised crime with which we are all now familiar the community will be prepared to suffer that cost .