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Monday, 4 June 1984
Page: 2465


Senator Sir JOHN CARRICK(9.33) —The Senate has before it the National Crime Authority Bill 1983. To understand the Bill it is important to know its background and circumstances. Some 16 months ago, immediately prior to the advent of the Hawke Labor Government, the National Crimes Commission Bill was passed by both Houses of Parliament. That Bill was ready for proclamation. However, the Fraser Government had gone further. It had nominated the first chairman of that commission, a very distinguished Queensland jurist, Mr Justice Edward Williams. Mr Justice Williams has had, apart from his very eminent legal background, experience in investigation into criminal matters. In March last year everything was ready to implement the setting up and immediate activation of a National Crimes Commission.

The urgency was patent. There had been some five or six major royal commissions into crime in Australia. The names of those commissions are well known. There was the Moffit Royal Commission on Alleged Organised Crime in Registered Clubs in New South Wales, the Woodward Royal Commission into Drug Trafficking, the Williams Royal Commission of Inquiry into Drugs, the Stewart Royal Commission of Inquiry into Drug Trafficking and the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union. All are household names. Every Australian who takes an interest in public affairs knows that the pattern of those royal commissions was the revelation that, in Australia, there is now major organised criminal activity of very large proportions. If we had not appreciated that from others, certainly we would have appreciated if from the Costigan Royal Commission. Mr Costigan did Australia a very good service in his revelations, not only about the painters and dockers but also in the wider sphere. Indeed, he said of the Painters and Dockers Union that it was not a trade union in the ordinary sense at all, but a gang of criminals organised for criminal purposes to recruit criminals to pursue criminal acts.


Senator Georges —That is nonsense.


Senator Sir JOHN CARRICK —Senator Georges said it is nonsense. I am paraphrasing the report of the Costigan Royal Commission.


Senator Georges —It is still nonsense.


Senator Sir JOHN CARRICK —Senator Georges may, if he wants to interrupt, challenge the very framework. He knows that there have been 35 murders inside the Painters and Dockers Union. Only three of the murderers have been brought to book. He knows that just about all the crimes in the calendar are known to the police force to have been committed by the painters and dockers. I am not being diverted from this. I simply say that because the Moffitt, the Woodward, the Williams, the Stewart and the Costigan royal commissions all revealed that pattern the Fraser Government set up a National Crimes Commission. It was ready, under an eminent jurist, to begin operation. The important thing to understand is that the Hawke Labor Government came into office and set aside that legislation. It refused to implement it. For five months it did nothing at all. For five long months in the face of assertions by a series of royal commissions that there was the most devastating organised criminal activity in Australia, of all kinds, extending into every fabric of the Australian community, such as the professions, the law and politics, the Hawke Labor Government did nothing.

On 28 and 29 July last year, the Hawke Government sprang into action and had a public conference. I commend, at any stage, a public inquiry. However, it wasted five months. I think Senator Chipp will agree with me that those were precious months. That inquiry simply gave a cross-section of understanding that was known to the Fraser Government, Senator Chipp and his colleagues well before that. It was not necessary to get that information from that conference to act. However, another four months went by until November when the National Crimes Authority Bill 1983 emerged. Nine months was wasted in doing nothing. The real question the public has to understand is why those months were wasted. Of course, a clear picture emerged when the Bill was brought into Parliament. It emerged that, instead of the Fraser Government's Bill which had teeth, which was capable of initiative in pursuing issues, the Bill, rather than pursuing the criminal, did nothing and in fact blocked any activities. To the Senate's amazement, as we examined each of the implications of the Bill, it became clear that it was full of the gravest imperfections.

The Senate, having looked at the Bill, referred it to the Senate Standing Committee on Constitutional and Legal Affairs and asked the Committee to look at the Bill and to take evidence to see whether it could be effective. That Committee acted swiftly and thoroughly. It brought down a report, a copy of which I have in my hand. That report said that the Bill was ineffectual and contained the gravest of defects. The report is an all-party committee report; it involves the various political parties in this Senate. The report itself says that the legislation was found to be quite incapable of doing what it purported to do. The report brought forward 49 recommendations-an extraordinary reflection on the Bill.

Let us examine the Bill which is now before us, with some foreshadowed government amendments and many foreshadowed by the Opposition and the Democrats. That Bill deliberately emasculated Commonwealth powers. We must ask ourselves why would a government deliberately insert in a piece of legislation an emasculation of its powers and an abdication of its responsibilities. I do not believe the people of Australia would believe this, but I state it and I will read the clause in a moment. As we know, the Commonwealth has grave responsibilities and great powers under the Constitution. This Parliament exists to see that those responsibilities and powers are implemented. It is an abdication of responsibility and power if a government seeks to emasculate those powers.

The Government has great responsibilities in terms of drugs, currency and all those tax matters that cut across borders and are strictly its responsibility. But what did it do? It set up an inter-governmental committee of the Commonwealth and the States. This is what it said.


Senator Gareth Evans —You hypocrite. You federalist hypocrite. Listen to you now . Do you know what you are saying?


Senator Sir JOHN CARRICK —I want to give the opportunity to the Attorney-General to speak.


Senator Chaney —On a point of order. I ask for the interjection to be withdrawn.


The ACTING DEPUTY PRESIDENT (Senator Collard) —Senator Evans, you are asked to withdraw your statement.


Senator Gareth Evans —It has never been the practice in this place to regard the word 'hypocrite' as other than a legitimate description of propositions advanced by the other side. I would be extremely surprised to find that it is unparliamentary.


The ACTING DEPUTY PRESIDENT —It has been asked to be withdrawn and has been withdrawn on previous occasions. I ask you from the Chair to withdraw it.


Senator Gareth Evans —If there is some precedent for its being thought to be unparliamentary, I accept your ruling and withdraw it.


Senator Sir JOHN CARRICK —I did not ask for a withdrawal because I believe that the community deserves to know the kind of blustering behaviour that this Attorney-General has been putting on day by day in this Senate. It is only when they realise the bluster, the bravado, the absolutely abusive and insulting language of this Attorney-General that they will appreciate what I am now about to say. I was told I was a hypocrite because I am about to reveal to the Senate and to the people of Australia the fact that the Hawke Labor Government and its Attorney-General deliberately set out to make it impossible of their own accord to act upon a matter that is purely a Commonwealth matter.

The report of the Standing Committee of this Senate says exactly what I am now saying. The Attorney-General is the only person in step in the regiment. So great is his ego that he can concede that, and in fact he can concede nothing else. His narcissism completely consumes him. Let us examine the Bill he has set up. The Bill contains these words:

The Minister may, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory.

In fact, if there is a Commonwealth offence, he has to go and ask the intergovernmental committee 'Please may I pursue this matter', a matter which is entirely a Commonwealth responsibility, nothing to do with the States at all. In fact, it is a matter the Attorney-General is absolutely bound to follow because that is his duty under the Constitution and under law. So that there could be an obstruction in the way, a road block was put in the way of pursuing Commonwealth matters. One has to ask oneself why would anybody do that.


Senator Gareth Evans —You fraud. Neither Tasmania nor Queensland supported it.


Senator Sir JOHN CARRICK —In case the community does not know, the Attorney- General says: 'You fraud'. That is a remarkable statement from the senior law officer of this country, a remarkable statement from a man who knows that the Senate Standing Committee found that what he had brought forward was a completely ineffectual blocking device. So let him interject. Every time he does so, I intend to expose to the public the kind of bluster and bravado the Attorney-General has. Let me go one step further, and perhaps the Attorney- General will say 'You fraud' again. So that there could not be the ordinary pursuit of those kinds of offences that the world over is necessary for the pursuit of organised crime-and I refer to the pursuit of prostitution, gambling, currency violation, tax offences, all those kinds of offences which in Europe, in the United Kingdom, in the United States of America are the offences of pursuit-what did he do? He said that a relevant offence-that is, an offence that can be used under this legislation-shall be an offence the maximum punishment for which is imprisonment for a period of not less than three years. Any offence for which there is a maximum penalty of less than three years cannot be a relevant offence.


Senator Gareth Evans —Except insofar as it is incidental to it. Accept that interjection. It makes nonsense of your argument, you blustering fraud.


Senator Sir JOHN CARRICK —Let me say to the people who are listening outside that this Attorney-General is attempting to shout down a speech because he knows that a Senate Standing Committee and the public in general have found him out on all scores and we will not be shouted down. He can use all the abusive language he likes, as he does every day, but the point will be made. The Senate Standing Committee has made the point that this relevant offence would have denied the ordinary pursuit. As Mr Costigan says, how one pursues an offence of organised crime is to pursue the trail of money. He says:

The first thing to remember is that the organisation of crime is directed towards the accumulation of money and with it power. The possession of the power that flows with great wealth is to some people an important matter in itself but this is secondary to the primary aim of accumulating money. Two conclusions flow from this fact. The first is that the most successful method of identifying and ultimately convicting major organised criminals is to follow the money trail.

If anybody knows this, he will remember that Al Capone, the most notorious American criminal, was caught on a tax offence. He was pursued on a tax offence. Everybody knows that if somebody is wandering into this world of organised crime , he must pursue prostitution, gambling, currency violation, tax offences and all these elements, wherever the big money is. What has happened is that this is to be denied. But Mr Costigan said something else on that matter in relation to which I was told 'You fraud' when I pointed out that the States had the right of veto. Mr Costigan said:

Organised crime thrives on corruption: Any proper investigation of its activities will inevitably find evidence of corruption. If a State Government or the Federal Government has the right to forbid a particular line of investigation then the independence and integrity of the commission is destroyed .

That clause of the proposed Bill that I read out destroys the integrity of the Commission. Does the Attorney now say that Mr Costigan is wrong? One by one clauses constituting the very fabric of the Bill have been made unworkable. Nobody could have done it except deliberately. How could anybody have done it except deliberately?


Senator Gareth Evans —Except that they had a regard for Federal-State co- operation and a regard for civil liberties, both of which you have ignored.


Senator Sir JOHN CARRICK —I hope that the Senate and the community heard that. Does every exercise of Commonwealth power under the Constitution, in which the Commonwealth power is absolute, mean that one has to go to the States and say: ' Please, it is my absolute power, but I must ask you first?' The nonsense of this situation is in that proposition. We are talking not about powers that the States--


Senator Gareth Evans —You know as well as I do that Commonwealth power is only exclusive in certain very narrow areas. You can only live with co-operation. It is hypocrisy and it is nonsense.


Senator Sir JOHN CARRICK —Let the Attorney shout, but the people will understand the neurosis that haunts the Attorney-General.


Senator Durack —This is the man who is talking about State rights?


Senator Sir JOHN CARRICK —Yes, this is the man who is now talking about Federal- State powers and who took to the High Court the Tasmanian dam issue and cited an international treaty to break down Federal-State rights.


Senator Gareth Evans —You fraud and you hypocrite.


Senator Sir JOHN CARRICK —I am delighted that the Attorney should call out all the time.


The ACTING DEPUTY PRESIDENT (Senator Collard) —Order! Senator Evans, I ask you to withdraw.


Senator Gareth Evans —In deference to you, Mr Acting Deputy President, again I will withdraw, but this constant barrage of nonsense is more than anyone can possibly tolerate from a man who is supposedly committed to the principles of Federal-State co-operation in those areas, whereas in a practical matter the Commonwealth simply cannot act alone.


Senator Sir JOHN CARRICK —Lest anyone should have any doubts about my validity on Federal-State affairs, I point out that I was the Minister responsible for Federal affairs who instituted the very fabric of Federal affairs which the Labor Party, including Senator Evans, in opposition opposed tooth and nail. Let the Attorney not mouth the words of Federalism when a former leader of the Labor Party, Mr Whitlam, said that the right thing for members of State parliaments to do was to destroy State parliaments. The Labor Party set out in its constitution to destroy State parliaments. Let there be no diversion on this. The Bill proposed something else. It proposed that it would allow political intervention by the Attorney-General to decide whether something should go on or not. What a strange situation it is when a so-called independent quasi-judicial body is set up under a Bill which allows the Attorney-General to intervene and prevent it from doing certain things. No wonder that the Senate Standing Committee found against the Attorney-General on 49 scores.

Lest all this bluster of the Attorney-General be misunderstood, both the Standing Committee and the Opposition, including the Democrats, will move that there be an amendment to remove the veto which can be exercised by the committee of Federal and State Ministers upon the reference to the Authority of a purely Federal question. In other words, we will say that a national crimes commission shall have absolute authority to pursue those things that are totally Federal powers. Let there be no doubt about that. The Opposition will also amend the meaning of a relevant offence so that the commission can pursue those offences which will take it down the money trail to organised crime. The Attorney, having fought against the setting up of this Standing Committee and saying that it was nonsense, has said that the Government will accept some 31 of the 49 recommendations. But in fact he rejected the key recommendations. As this Bill now stands the State veto remains. It represents an abrogation of the Commonwealth. The provision is put in to form a road block against the Commonwealth doing anything. It cannot be there for any other reason. All those who gave evidence to the Committee pointed out that this was so and that the Authority would have no teeth and no ability at all.

Let us take this step by step. This extraordinary piece of legislation in fact does not give any real initiative to the Authority. It must in fact go with a begging bowl to the Government and to the Attorney-General. Quite clearly the Opposition intends to move to enable the Authority to act on its own initiative in the investigation of purely Federal offences, so that it can exercise its full coercive powers without any reference from the Government. As Senator Durack has said, this will eradicate the potential for political manipulation so prominent in the present Bill. It is amazing that we need to take away the Government's power to manipulate. Where is the corruption in this situation? We will widen the definition of offences so that in fact the Commission can follow the money trail. We will remove the State veto. We will remove the present limitation in the Bill which permits references to the Authority only if ordinary police methods of investigation are not likely to be effective. What a mess that provision is. It could lead to endless arguments and delays before any action could be taken.

We will do away with the amazing new proposal of the Government which requires that only police officers may interview suspects outside formal hearings of the Authority. Why would the Government put that provision in the legislation unless it wanted to obstruct, to delay or to prevent? We will say that the Authority should not comprise three people of whom two are nominees of the States. We will add two more so that there will be five people on that body, and two independent and expert minds, apart from the other three, can be brought to bear so that there is the widest possible understanding. We will amend the Bill to prevent the withdrawal of references by the Government unless approved by both Houses of Parliament. It is an extraordinary situation that the Authority can proceed with an investigation and without anybody saying no the Government can step in and stop it. Honourable senators should ask themselves why a Government would want to do this. It can only be to put road blocks along the way.


Senator Durack —Why do they want to stop Costigan?


Senator Sir JOHN CARRICK —That is an extraordinarily good question and indeed one that the Government has failed to answer. It has never given an explanation on this. We will make it mandatory that there be a minimum of two members of the Authority present at hearings. We will remove the right of the Ombudsman to investigate complaints against the Authority and the requirement for a judicial audit because the Chairman of the Authority, one hopes, will be a judge. One hopes that it will be Sir Edward Williams, an eminent man. If it is a judge there will be a judicial approach. We will establish a joint committee of the Parliament to monitor and review the performance of the Authority.

If we consider what has happened we see, first, that the Hawke Labor Government could have implemented 15 months ago a national crimes commission which on all expert advice would have had the powers, the authority and the right construction to get on with the job. It could in the last 15 months have intervened in major crime activity in this country. It could have been well on its way to crime busting in this country. One has to ask why the Government wanted five months to have a little conference in this chamber. Why did it wait four months after that and then, after those nine months, why did it bring down a Bill in which it had deliberately written in road blocks at every clause to make it unworkable? Why did it do that? One has to say that it is no good for the Government to get up and say that it did this because it believes in civil liberties.

I wonder at this, because there are some old fashioned civil liberties. John Stuart Mill had a better understanding of civil liberties than the Attorney- General. He did not look at the civil liberties of only the criminal and the potential criminal, he did not try to safeguard the liberties of such people only; he understood that the parliament had a right and an obligation to protect the liberties of all and so to restrict the liberties of the few in the interests of all. They are not my words; they are the words of a man named John Stuart Mill who understood civil liberties far better than anyone here. Shakespeare comes to my mind:

Mark you this, Bassanio,

The devil can cite

Scripture for his purpose.

We can hear this when members of the Government talk about civil liberties. They can cite scripture for their purpose but all they are doing in this Bill is protecting the liberty of the criminal against the liberty and freedom of the majority. We have to ask ourselves all the time why this is so. It is not a question of civil liberties. We were supposed to have a human rights Bill; we were told in a speech by the Attorney-General that it would be tabled in the two Houses for open discussion but not now. It will be hidden until after the election.


Senator Missen —That is politics.


Senator Sir JOHN CARRICK —Yes, that is politics. What we have is a mouthing of words, empty rhetoric, but when action is introduced in the form of the Bill on the table we find the very reverse. The other side of the moon to civil liberties is first of all a delay of unconscionable length. There is no reason at all why a national crimes commission should not be busy in its activities. There is no reason at all other than that the Government decided that that would not be so. There is no reason at all why the Bill which came before us should not have had any teeth. One by one its incisors, the bite of the Bill, were taken out. What an ugly idea the veto of the States is. Does anyone in the community not understand that this Attorney-General has sought to say that even though the Constitution has clothed him with the authority to carry out Commonwealth responsibilities in law he will not do so if one of the States says to him that he must not? That is the way we pursue criminality in this country! All I can say is thank God for the Senate Standing Committee on Constitutional and Legal Affairs; thank God for a Fraser government that knew what was right and thank God for an Opposition that has put forward amendments which if accepted will make this a real piece of machinery to pursue criminality in this country in an effective way.