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Tuesday, 5 June 1984
Page: 2521

Senator CRICHTON-BROWNE(5.20) —Mr Deputy President-

Senator Gareth Evans —Why do you not put your name on the list and conform with arrangements?

Senator CRICHTON-BROWNE —Why do you not learn to read? My name is on the list-

The DEPUTY PRESIDENT —Order! Senator Crichton-Browne has the call.

Senator CRICHTON-BROWNE —The Attorney-General (Senator Gareth Evans) should apologise, not just wave his hand. We are debating the National Crime Authority Bill 1983 and the National Crime Authority (Consequential Amendments) Bill 1983. This is the third attempt, as I recall, by the Federal Parliament to place legislation of this nature permanently on the statute book-the first attempt having been made by the previous Government but, with the change of government, it was not proclaimed. The original National Crimes Commission Bill, as it was described, flowed from the revelation of various royal commissions, task forces and investigatory bodies, not the least being the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union as to the level, depth and width of organised crime and corruption within Australia.

It has only been in recent years that the magnitude of this crime and corruption taking place in Australia, almost as a part of Australian life, has begun to become apparent to the community at large and in many respects to law enforcement officers. There is little doubt that with the increasing sophistication with which crime is being carried out, it is necessary for law enforcement agencies charged with investigating these crimes to be given the best possible environment in which to operate. The Crime Authority as envisaged under this legislation, as was the case with the previous legislation, will have certain powers which are not available to other agencies or jurisdictions. It will, no doubt as a result of the funds proposed to be allocated to it, be able to attract the very best personnel with the requisite expertise to deal with sophisticated crime and it will also, presumably, have access to the best equipment to enable detailed intelligence gathering and analysis of the type used in the Costigan Royal Commission.

Ironically, one of the real fundamental differences between the Bill now before the House and that introduced by the previous Liberal Government is that this Bill has been prepared in consultation with the States and, presumably, with the Standing Committee of Attorneys-General and the Police Ministers' Council. It involves the various State agencies in its operation and creates a legal framework which allows them to introduce complementary legislation to give them the same teeth and effect. Although there has been and is considerable debate about the virtues of any one of the members of the inter-governmental committee having the power of veto over a reference-a matter to which I shall address myself shortly-the truth of the matter is, I believe, that no such authority will fulfil its potential if it does not have the goodwill and active support of the various States.

As I recall, I was the only senator in this chamber, at least on this side of the House, to vote against the previous Government's legislation, not because I opposed the concept of a crimes commission or authority, but rather because I believed it would not be effective and was to be imposed on States against their will. Again, it will be argued that many areas of crime fall within Commonwealth jurisdiction. I believe that the truth, by and large, is to be found elsewhere. For instance, it will be argued that drug trafficking falls within the Commonwealth jurisdiction and in terms of illegal importation and foreign currency transactions that may be so. However, the greater area of responsibility for drug related offences falls within the jurisdiction of the States. No doubt the importation of drugs will be grounds for Commonwealth involvement, and quite properly so, but without the experience, expertise and assistance of State government agencies, the Authority will be deficient in its ability properly to grapple with the ever-growing drug trade.

I do not underestimate the vital role the Commonwealth has to play in dealing with organised crime, nor do I underestimate the areas of responsibility which fall within the parameters of its terms of reference. I commend the Government at least in one respect-namely, on the way in which it has involved the States in the National Crime Authority. It may be that the Attorney-General has been forced to construct the inter-governmental committee in the way that he has as a result of pressure from State Labor Governments. I suspect that is the truth rather than that he is a born-again States righter. I must say it does seem a remarkable change of heart coming from our centralist Attorney-General who frequently calls for the abolition of State governments. Though I do not question his motives, I find them raising themselves in my own mind.

I turn to the provisions of the Bill, and particularly to the power of veto contained in clause 11. The Opposition has moved an amendment to that provision which is intended to remove the power of veto by the Inter-Governmental Committee of a reference which has been proposed by the Commonwealth Attorney- General. One can set down an excellent argument against a State being able to veto a reference which relates to an offence or offences against a law of the Commonwealth or of a Territory, and that argument has already been presented in a clear, persuasive and articulate fashion by other honourable senators on this side of the chamber. For my part, I have to say that I do not feel as intensely about that clause as do some of my colleagues, because in practice I do not believe that a reference submitted by the Commonwealth relating to Federal laws will in any circumstances be likely to be vetoed by a State. In the event that a reference is in the circumstances vetoed, the State or States so vetoing the reference will have to justify that action in a practical way to the Commonwealth Parliament and to the Australian people. Given the dynamics of politics, if it is perceived by a State government of one political persuasion that a State government of another political party is seeking to veto a reference, one can be sure that the motives of that State government or that Attorney-General will be carefully and fully scrutinised. I am sure that the checks and balances of the composition of the Committee will maintain its integrity.

Senator Gareth Evans —Exactly. I am glad you spoke.

Senator CRICHTON-BROWNE —I did not want to be too unkind at the outset, but I knew that the Attorney-General would be receptive to some of my comments. One weakness of Australia-wide crime detection in areas to which the Authority will be expected to address itself has been lack of co-operation and goodwill between law enforcement agencies of the States and Commonwealth. It should be remembered that the Authority has power under its general terms to investigate matters of its own initiative and the veto would apply only to the special coercive powers. However, on balance, for the reasons set out by the Opposition, I am prepared to support the amendment. When legislation of this nature is contemplated, the Parliament ought quite properly to take great care to ensure that the historic and intrinsic rights and freedoms which a democracy such as ours provides are not trampled under foot either for short term political expediency or in the name only of law and order.

This legislation sets up a unique authority with powers which, by any measure, suspend the traditional civil liberties of our citizens. There will always in these cases be the need to balance very carefully the rights of the whole community with the competing interests of bringing to justice those in the community who steal government revenue, who peddle misery and death through drugs, who commission murder and wreak havoc and destruction upon our society through their cold and calculating pursuit of every conceivable type of organised crime and corruption. We have to recognise that the purpose of this legislation is to protect society while protecting the civil liberties of persons. To ignore or disregard the fact that there are competing considerations is to suspend liberty and freedom without appropriate safeguards. The National Crime Authority Bill, of necessity, intrudes into some of these traditional areas of freedom and liberty. For it to be an effective weapon against crime and corruption, of necessity, it has to do so.

Under its special powers of investigation it is invested with authority to demand of individuals their business documents, to obtain personal details from government agencies and to obtain through a judicial warrant personal taxation records. Unless that information falls within the definition of personal documents, which excludes taxation records, there can be no claim of self- incrimination. Of course, the definition of a business document is so wide as to include almost every document short, perhaps, of the personal diary of a man or woman. Invariably the transactions will be of such a nature that the documents will fall within the category of business documents. They will include documents relating to family trusts and documents connected with private family companies. They are likely to be the same documents as those which might normally be considered personal documents. Thus there is a great capacity for the Authority, to use the expression which seems to be attracting some repetition in this Parliament, to pursue the money trail, to pursue the paper trail. Of course, ultimately the oral evidence in many respects will be only confirmation of that trail. The real capacity of the Costigan Royal Commission is following the money and paper trail. Its great revelations have not come from oral evidence.

As I have said, the fact that these coercive powers can be used only in the case of a term of reference and under special investigation to some extent is a safeguard against their abuse. I am tempted to the view that they should not be extended. A further safeguard is that in the case of oral testimony by natural persons the privilege against self-incrimination should be recognised. Where the discretion to abrogate the privilege and compel the giving of evidence is to be used it is to be accompanied by the grant to the witness of a derivative use indemnity in the case of the use of such evidence in criminal proceedings against him; but that indemnity does not extend to civil proceedings. It seems to me that that is a matter that has been ignored by most who have contributed to the debate so far. A further safeguard--

Senator Missen —Everybody knows that, though.

Senator CRICHTON-BROWNE —If they know it, why do they not say so, because perhaps it belittles in some respects and dilutes the arguments they are putting forward. A further safeguard against the risk of damaging or destroying the safety, reputation or fair trial of an individual is that the hearing shall take place in private. That is a proposition that I strongly support. In the event that criminal prosecutions are to be instigated against individuals as a result of the inquiries of the Crime Authority the hearings, in the normal course of events, will be public. In my view that is the proper time for the allegations and the evidence against people to be made fully public. To have hearings of the Crime Authority made public would run the very grave risk of unfairly destroying people's reputations. These days, in this community just the publication of the names of those appearing before the Authority would have the potential to damage reputations.

Further, as I think the Senate Standing Committee on Constitutional and Legal Affairs pointed out, it is possible that people appearing before the Authority could find their lives in danger. In the event that their evidence is made public there will be a temptation for them to depart from the truth. They may well be anxious about the possibility that those from whom they fear danger will know what they have said and they may be tempted to say what their criminal chiefs want to hear.

Proposed new clause 25A provides an appeal mechanism for a person or body claiming to be entitled to refuse to furnish information or to produce a document or thing that he or it is required to furnish or produce. That is another safeguard. The clause makes provision for the person or body to appeal to the Federal Court against the decision by the Authority, with further appeal provisions under the Administrative Decisions (Judicial Review) Act. A further safeguard to protect the rights of citizens is that, for the purposes of the Ombudsman Act, the Authority shall be deemed to be a prescribed authority. Again , the application of that Act has considerable virtue. However, my concern is, given the enormous financial resources of those who are likely to be involved in the type of crime towards which this legislation is directed, whether that Act will be used by these people to frustrate the proper functioning of the Crime Authority.

I have a great deal more faith in the application of a judicial audit conducted by a judge of the Federal Court or a State or Territory Supreme Court. While presumably the Chairman of the Authority will be a judge, it is not mandatory under the proposed Act. Even if it were to be the case, I believe, given the wide and unique powers of the Authority, such a judicial review has very considerable virtue.

Senator Missen —There is not much of the Government's view that you don't hold on this, is there?

Senator CRICHTON-BROWNE —I have only 30 minutes to deal with this subject. Quite frankly, I am putting down what I believe to be the important parts of my deliberations rather than seeking to score political points. I think this is a subject vital to the community as a whole. It is important that the facts be presented as they are interpreted by each individual senator. It has now been proposed by way of an amendment that there be a joint parliamentary committee to examine the activities and functioning of the Authority from time to time. Given the modus operandi, the method of collecting intelligence and analysing it, I wonder whether a committee of the Parliament would ever really be able to fulfil a proper audit and make a proper determination as to whether the functions of the Authority have been conducted in a proper fashion and in a way that preserves the rights, responsibilities and integrity of all the individuals involved.

Senator Missen —You don't even support the Opposition on that.

Senator CRICHTON-BROWNE —With respect, Senator Missen will just have to wait to see how I vote. I am prepared to put forward arguments for and against. I think points of view ought to be put forward on both sides and weighed on balance. A determination can then ultimately be made. I listened to Senator Missen's speech with a great deal of interest, hoping that I might be persuaded to some of his points of view. I think when he sees my voting pattern he will be in some way pleased that I bothered to listen to what he had to say. Returning to the question of whether a judge should act as chairman of the Authority, I believe that the qualifications set out in the Bill for the Chairman of the Authority are not satisfactory. I do not subscribe to the principle of having members of the judiciary heading authorities of this nature. As I have said many times before, nor do I subscribe to the theory of having members of the judiciary heading royal commissions. I believe it runs the risk of debasing the integrity of their office and also allows the judiciary to be used for political purposes. We have seen that in recent times. However, I do not believe that appointment of a person who has been enrolled as a legal practitioner for not less than five years only will, as this Bill provides, necessarily ensure a chairman of demonstrable skill, experience and wisdom.

I have a further concern that, as clause 21 (2) tells us, at a hearing the Authority may be constituted by one or more members or acting members. Again, given the discretionary powers of the Authority, particularly at hearings, I believe that for continuity, uniformity and safety it is desirable that at any given hearing there should be at least two, and preferably three, members sitting. There are a number of other matters which give me concern and although those I list are not exhaustive I believe that justice needs not only to be done , but to be seen to be done. I believe it is not desirable, to quote clause 46 ( 1), that:

The Authority shall keep the Minister informed of the general conduct of its operations--

including the performance of its functions--

and, if the Minister requests the Authority to furnish to him information concerning a specific matter relating to its operations--

that is, in the performance of its general functions--

in respect of a reference or references made to the Authority under section 11, shall comply with the request.

To me that is blatantly improper. No doubt it will be argued by the Attorney- General that it is intended to vest the responsibility for the activities of the Authority with the Minister. However, it could very easily be claimed by others that it amounts to political interference and it could be viewed by some as the government of the day seeking to look after its own. The Authority's activities are intended to be confidential and in my view they should remain so. A similar provision is contained in sub-section (3) in respect of a Minister of the Crown of a State. I take the same exception to that. While sub-section 6 provides that the Authority shall not furnish to the Inter-Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons, it does not preclude the providing of information which may be used perhaps by a corrupt official to tip off an offender who is under close investigation. To me there seems to be no justification whatsoever for that provision and it may well be that it puts the lives of those giving evidence and those likely to be indicted gravely at risk.

Whenever in the name of law and order the Parliament takes from members of the community their rights as free citizens, when we strip away proper protection from abuse, the excesses of zealous officials, and remove what have been the fundamental principles of justice, we must ensure that every possible check and balance is set in place to safeguard against improper use of these powers. As I say, dealing with the type of crime and corruption that this legislation is designed to control and fight requires special powers under special circumstances. The Crime Authority will be an enormously powerful body and in pursuit of the evils of which it seeks to rid the community we must with diligence and vigilance maintain a proper and responsible long term view as to the balance of individual rights and Government responsibilities.

In conclusion, I refer to one other matter. I recall that a section in the Bill says that inquiries can take place only if it is determined that they are not inquiries that can be properly dealt with by normal police investigation methods . The Government has been very silent on the matter of upgrading the quality of Commonwealth police. I will touch on State police as well but of course that is a State responsibility, although perhaps it ought to be embraced in the comments that I make. I do not suggest for a moment that the vast majority of policemen and policewomen are not loyal, dedicated, competent and hard working. However, if the various forces and agencies are to compete with the skills of those operating sophisticated schemes of criminal intent, there must be in police forces both men and women of commensurate capacity and skills. The criminal elements involved in these crimes have access to first class lawyers, first class accountants and first class advisers generally. I believe that the police forces ought to be seeking to attract people into their ranks with comparable qualifications. This can be achieved only if there is a greater emphasis upon qualification rather than seniority. It is true not only of State police forces but also the Commonwealth force that promotion rests very much upon seniority and not on particular qualifications. If the various police forces are to attract highly qualified people, I suspect that they will have to allow in at commissioned officer level those who are entering a police force for the first time. Of course they must be provided with commensurate salaries.

As I say, this Bill suggests that matters should be referred to the Authority only if the normal police procedures are inadequate. Of course they are inadequate, by and large, and they will continue to be inadequate in terms of dealing with the problems that are intended to be addressed by the Authority until such time as their structure is changed. That is very much a matter for the States but it is a Commonwealth responsibility as well. I hope that in due course attention is given to that area and I am sure that the success of combating organised crime and corruption will take on a whole new aspect and the Authority's functions will be much more effective.