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Tuesday, 5 June 1984
Page: 2525


Senator GARETH EVANS (Attorney-General)(5.45) —in reply-I thank honourable senators for their contributions to this debate on the National Crime Authority Bill and the National Crime Authority (Consequential Amendments) Bill which, with two or three exceptions, have been constructive and forthright even if the Government has not always agreed with the points of view expressed. The second reading debate on this occasion has been relatively short but it does follow a long series of debates in this place in recent months in which the issues have been thoroughly canvassed. I refer in particular to the debate on the motion on 17 November last year to refer these Bills to the Senate Standing Committee on Constitutional and Legal Affairs, the debate on 1 May and again on 2 May when the Committee's report was presented and then the further substantial debate we had when the ministerial response to that Senate Committee report was tabled on 10 May. That parliamentary consideration follows, moreover, something like 18 months of earlier debate inside and outside the Parliament, first on the Fraser Government's National Crimes Commission Bill, then on the Government's Green Paper, and then in association with the Senate Committee's reporting process. That debate has been so extensive and the Government's position is now so well known as a result of it that I do not believe it is necessary for me to speak at length on this occasion, not least since I have had an opportunity, albeit to a somewhat limited extent, to express some reaction to criticisms that have been made of the Bill and of the Government's reaction to the Senate Committee report in a major article in the Age on 28 May, supplemented by a further short piece in that paper on the following day, 29 May.

The basic point I have sought to convey in all my contributions to this debate both inside and outside Parliament, and a point which I believe has been totally overlooked by those who have either criticised the terms of this Bill on their face or who have seen sinister motives in aspects of its construction, is that the Bill is directed to securing not just one objective but in fact three closely inter-related objectives. Of course it is designed to create an effective machinery to deal with those kinds of organised crime which have hitherto proved to be beyond the capacity of conventional law enforcement methods to cope with, a state of affairs that has been amply documented in a series of royal commission activities and reports over the last decade.

But that is not the end of the matter. A second objective has always been to create a machinery which at the same time respected fundamental rights and liberties, always necessarily at risk when bodies are created exercising coercive investigative powers. The third objective we have had in all of this is to create a machinery which, while satisfying the first two objectives, also is such as to guarantee, or at least create the possibility of, genuine State co- operation with the Commonwealth. Most of the argument has concerned the efforts in this Bill to create procedures and structures which reflect that third objective-State co-operation with the Commonwealth. I make it absolutely clear to the extent that it has not been made clear already that that objective does not stand alone. It is very closely related to the first objective I mentioned; that is, the effectiveness of the National Crime Authority itself.

Despite the kinds of assertions that were so crudely made by Senator Sir John Carrick in the debate yesterday-that the Commonwealth had all the powers it needed to act in the areas of organised crime, that all the big issues of organised crime fell effectively within the Commonwealth's constitutional capacity to control without any reference to the States and without any need in any way to rely upon the States-the reality is otherwise. It is the case that although a great many significant organised crime offences are within the Commonwealth domain, and although it is appropriate for the Commonwealth to exercise leadership in this respect, by no means all the kinds of offences one associates with organised and sophisticated crime are Commonwealth offences. A great many of them are in the area of the States.


Senator Crichton-Browne —Many of them are interrelated.


Senator GARETH EVANS —Moreover, those that are within the States cannot be dealt with, even with the best will in the world, by a purely Commonwealth authority. If the Commonwealth authority is to operate in relation to those State offences, which as Senator Crichton-Browne has said are very often interrelated in practice with the commission of Commonwealth offences, it is crucially necessary for the Commonwealth authority to be clothed with the formal authority from the States which would make it possible for that Commonwealth body to do its proper investigative job. Moreover, even to the extent that the offence in question, which might be sought to be pursued, is a purely Commonwealth offence with no concurrent State offences in sight, all the evidence and all the experience of the last decade or more in endeavouring to cope with organised crime in its various manifestations has been that the Federal investigation and enforcement authorities operate with at least one hand tied behind their backs unless they can do so with the active co-operation of State law enforcement authorities-co- operation by way of information exchange, actual on the ground operational police activity and information supplied from State agencies, perhaps corporate affairs commissions or bodies of this kind, without whose co-operation the offences in question, even though they be purely Commonwealth in character, simply cannot be tracked through.

It has been the experience that co-operation must exist. It may be that that co -operation can be secured and achieved for a body which is wholly Commonwealth in its orientation, as was the Fraser Government's National Crimes Commission model. But the experience of the State reaction to that particular model was such as to suggest otherwise. Certainly, all the experience that I have accumulated in my very close involvement with this issue over many months makes me believe that that co-operation would be grudging and limited, at best, unless the State authorities in question had a real confidence in the particular institution that was being created. That confidence, of course, can best be ensured by a formal involvement in the decision-making process. I do not believe that that proposition has been advanced by the States with any dishonesty, with any cynicism or on the basis that they have been got at in some way by organised criminal interests. I do not believe that any suggestion of that kind-very overt suggestions of that kind have been made in particular by Senator Missen and, less crudely perhaps, by other participants in this debate-has any foundation. To suggest otherwise is to suggest not only that all the Labor States are somehow acting in concert in this respect, but also that somehow a conspiracy is running in which the Queensland Government, with its notorious opposition to almost anything that Labor States ever do about anything, is an active party, and the Government in Tasmania an equally active party. The evidence shrieks out to the contrary.

There is a legitimate State interest involved here. I believe Senator Crichton- Browne has acknowledged that. It is not cynicism. It is not on the basis of any double standard or shift of position that I record that simple fact for the Senate to try collectively to absorb. It is the case that in order to secure State co-operation the States have made it clear that they want if humanly possible to have a role in all the decision making activities of the intergovernmental committee, including the decision making associated with conferring or granting a Commonwealth request for a reference to operate in the area of Commonwealth law. Senator Crichton-Browne very accurately articulated the position when he in effect said that this is really just a formal requirement because it is impossible to imagine in practice that, should the Commonwealth seek a reference, a majority of the States would somehow gang up and mobilise resources to resist it. The dynamics, the political atmosphere in which that would occur, the leakage that would occur from the debates that would take place would, I believe, as a practical matter make that impossible. So it is essentially something that is really in the nature of a symbolic commitment by the Commonwealth to the principles of co-operation that are involved here. It simply does not justify the kind of reaction that that particular aspect of the Bill has received in this debate.

Moving more specifically now to the question of the effectiveness of the Authority, there is no substance to the argument that a toothless pussycat or whatever is being created by this legislation as proposed to be amended. The whole point of creating a national crime authority is that it should in appropriate circumstances and appropriate cases be able to exercise the kind of coercive powers which are not available, and properly not available, to the ordinary police forces of this country. It should have the power to subpoena witnesses, to demand answers from those witnesses, to require the production of documents, to issue search warrants on appropriate application to a court, to seize relevant materials pursuant to those search warrants and to seek judicial orders for the withdrawal of passports in appropriate cases, should that be necessary for the pursuit of the investigation in question. All these are major coercive powers not available-God forbid that they ever should be available-to the police forces of this country. They are extreme measures and are taken in response to the extreme provocation represented by organised crime in this country. They are special measures. They demand very careful thought before they are ever vested in anybody and they demand the package and the network of constraints on their exercise that are built into this legislation.

But in all the emphasis on the constraints and on the checks, the balances and safeguards, let it not be forgotten that this is legislation with a sharp end, with a series of sharp points at its end which will operate very effectively indeed if the letter of the law is observed-the law that creates the powers and determines the circumstances in which they can be exercised. In addition to the basic network of powers in the original Bill, a number of other measures are proposed to be adopted by the Commonwealth in response to the Senate Committee's report, all of which again are designed to improve the effectiveness of the Authority. Thus it is that we will move amendments designed to give the Authority the capacity to recommend the granting to it of references, not just to wait upon participating governments to get around to it. We will recommend the adoption of an amendment much more specifically to state the general functions of the Authority in that zone of activity before it is given a formal reference, and to make clear that we want it to exercise a wide ranging investigative function in that particular area. We want to clarify and in some respects extend the Authority's capacity to arrange for and co-ordinate joint task forces explicit in the original Bill but now much more explicit and much more detailed and likely as a result to be much more effective following the Senate Committee's recommendations in this respect.

It is proposed that the Authority be given access to information held by Commonwealth agencies, notwithstanding the statutory secrecy provisions, subject to a few limited exclusions, which might otherwise apply, clarifying and extending as a result the capacity of the Authority to get information which is necessary to its effective operation. We have clarified again, or propose to clarify, the reach of the self-incrimination provisions so as to ensure that it will not be an excuse for failure to produce anything which can properly be described as business records. Furthermore, we will make quite explicit provision, both here and in the consequential amendments, for transfer of all material held by the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union to the Authority, about which there was some doubt in the way in which the legislation was originally formulated. So , in a whole variety of respects-I will not go into further detail at this stage ; there is plenty of time for that in the Committee debate-the Government has indicated clearly and unequivocally its commitment to effective legislation in this area.

In this respect I want to rebut particularly the claim that was made by Senator Jessop in his contribution to the debate that it was the view of the State Police Ministers, meeting as he said in conference a few weeks ago, that the proposed Authority was generally ineffective and a waste of time. When challenged by me by way of interjection to justify what I thought yesterday to be an extraordinary and unjustified assertion, he repeated that suggestion. I have taken the opportunity since yesterday to check what was my understanding of the Police Ministers' reaction to this legislation and, more particularly, the deliberations of the Police Ministers at their meeting, the Police Ministers' Council, in Melbourne on 25 May. What I have been advised-I have no reason whatsoever to doubt the accuracy of this; it can, of course, be checked by anyone who wants to do so-is that discussion by Ministers at that Council meeting in relation to the National Crime Authority was very brief. No more than three or four minutes were spent on it at that meeting. That is hardly surprising as all the Ministers had been present in Canberra just a few days earlier to work out with the Commonwealth an appropriate joint response to the Senate Committee report. Discussion in that very brief three or four minutes centred on the question of appointments to the Authority and the establishment of an advisory committee of police commissioners. There was no discussion, I am told, critical or otherwise, of the Authority itself or of the present legislation. To the extent that any resolution was adopted by the Council on this occasion, it was as follows:

. . . that it looks forward to the designation of a Chairman for the National Crime Authority (NCA) by the Commonwealth so that Police Ministers are able to give consideration to the nomination of a Member; and

that on appointment of a Chairman of the NCA he be notified that a committee comprising the Commissioners of Police will be made available in an advisory role.


Senator Chipp —Have you received a nomination yet?


Senator GARETH EVANS —No, not from the Police Ministers. In fact, they have indicated that they are awaiting the determination of a chairman, a matter which will, of course, not be the subject of consideration or decision by the Government until this legislation has been passed. I think that deserves to be put on the record in those terms because it is yet another wild and unfounded allegation of the kind that have peppered this whole debate. There have been allegations about matters of fact, inclination, intention and motivation. All of those allegations are equally unsound.

The civil liberties question has been systematically ignored by contributors to this debate from the other side of the chamber. Understandably, with the possible exception of Senator Crichton-Browne, who is--


Senator Crichton-Browne —Don't qualify it.


Senator GARETH EVANS —It was so unusual for Senator Crichton-Browne that I tended to overlook it. The mainstream Opposition spokesman indicated unequivocal support for the Opposition's position. There was a total neglect of the balancing that was and has been necessarily involved in the Commonwealth's approach to this, the balancing considerations that were urged upon the Commonwealth not only by members of the parliamentary Australian Labor Party and the Government itself, myself included, but also balancing considerations which were very vigorously urged upon us at the meeting held in this chamber in the middle of last year.


Senator Chipp —And by the Senate Committee.


Senator GARETH EVANS —And indeed by the Senate Committee. I think that point needs to be very fully appreciated, in particular in the way in which the Senate Committee emphasised the necessity for privacy and the absence of that glaring spotlight of publicity in the Authority's conduct of its investigations, not in order that it could get up to sordid and devious activity away from the gaze of public accountability, but in order that individual reputations were not put at risk during what is, after all, simply an investigative stage when actual charges have not been formulated and have certainly not been determined. Equally , the Senate Committee was very concerned to ensure a proper network of safeguards so far as the self-incrimination point was concerned and in a number of other ways to undermine but to reinforce the very legitimate concern which the Government has always felt in this area.

We will be responding in a number of further ways to the Senate Committee's recommendations. We did not by any means accept all of the Senate Committee's recommendations because we believed some of them went too far on the civil liberties front. The recommendation to do away with both judicial audit and the Ombudsman's checks and balances, we believe, would remove important safeguards. We will be debating the detail of those later. We think that at least one of those mechanisms is highly appropriate to retain. The Government has taken the view that access to tax records should not be open-ended but should require a judicial warrant except for the purposes of investigation of tax related offences where the Commissioner of Taxation may well appropriately follow past practice and hand over such material. Equally, in relation to search and seizure , while we certainly take the fairly robust view that the Authority ought to be able, on satisfying a court, to get a warrant for a reasonably wide ranging use of that power, certainly there should be nothing in the nature of an open go in such matters of the kind that the Opposition has been keen apparently to insert in the legislation.

With those quibbles and qualifications apart-again, we will have an opportunity to debate the particular matters in detail-we have broadly accepted the thrust of the Senate Committee's report and have sought to maintain broadly the thrust of the original legislation, which was not one-sided legislation concentrating wholly on the coercive powers and wholly on the effectiveness side of the equation, but which was, as it always has been, a balanced exercise in which we are trying to communicate a modicum of concern and respect for individuals not at the price of the body's effectiveness but in a way which ensures the credibility and integrity of that body's operation.

It is in respect of the civil liberties aspect of this debate that I come finally, and very gratefully in many ways, to Senator Missen's contribution. It has to be said that his only noteworthy contribution to the debate was his claim that the Government was acting in accordance with representations from Mr Kerry Packer. That was, as I said by way of interjection yesterday, a gross misrepresentation, coloured of course by some really contemptible innuendo. I do not often use that expression in this place, as Senator Chipp has really in many ways made it his own, but I cannot think of a better description of Senator Missen's contribution on this occasion. I answered Senator Missen in terms of the basic substance of his allegation in the Senate last week. I regret to say that yesterday-I am sorry that he is not present in the chamber to hear this-he accused me of lying in my answer to him, or if not lying, at least dissimulating .

I repeat, as I told the Senate last week, that I put the substance of his questions to me in this chamber to members of the Cabinet, around the Cabinet table. I received a response which I reported to the Senate. After putting that question I then, in respect of those Ministers who were not present at the Cabinet meeting on that occasion, contacted each one individually and put again the basic substance of Senator Missen's questions to me with answers, which again I have recorded in my response to this chamber. To complete the process I spoke to the Minister for Foreign Affairs, Mr Hayden, when he turned up this morning fresh from his travels and put exactly the same question to him. I received exactly the same response. I want to make it absolutely clear that there was no verbal shuffling in any way in which I reported those responses to the Senate. I conveyed the substance of Senator Missen's question in all its aspects to the Ministers, to whom I have referred to and in reporting that Ministerial response to the Senate there was no question of selective reporting or dissimulation on my part. I reject utterly-I do so quite explicitly-the substance and the letter of Senator Missen's allegations.

The Government and I have made decisions with respect to the Crime Authority- again I say so quite explicitly and directly-not on the basis of what may or may not have been perceived to be in the interests of any individual or organisation in this country but rather on the basis of our perception, my perception, of what was in the public interest in this matter. My concern, in establishing a Crime Authority, as I have made clear from the very outset, has been certainly with creating an effective authority, but also one which satisfies those other two interrelated objectives of preserving our civil liberties and guaranteeing or ensuring the co-operation of the States. I have been embarked, it seems now, almost full time since March 1983-since the very first day we came into office, since long before Mr Kerry Packer's name ever arose in the context of any allegation-on the kind of task of trying to find the right solutions for a permanent on-going body to replace the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union which has narrow terms of reference and a structure and personnel which are not geared to a long- term continuation of its role. I draw that state of affairs, which must be acknowledged to be true by Senator Missen as by any other honourable senator in this place, to the attention of the Senate in order that my bona fides, and that of the Government in pursuing this matter, can be fully appreciated, not just on my say so now in June 1984, but in terms of my whole record of commitment to getting this thing right, going all the way back to our first day in government.

I hesitate in some ways to say this, but I believe it needs to be said given the fierceness and the lowness of Senator Missen's attack in this place last night: I believe it is a sad measure of what Senator Missen has been reduced to in recent times, that those who were applauding him and supporting him in his contribution to this debate and in the substance of his attack upon me and upon the Government, were that very gang of senators-Senator Withers, Senator Sir John Carrick, Senator Jessop, Senator Archer, Senator Townley and all the rest- whose views on most issues over the years have been regarded, and regarded quite properly, by Senator Missen as totally anathema. Now it seems he finds himself out in front of the cave with all the rest of the Opposition neanderthals, thumping his clubs and grunting in unison with the rest of them. It is a sad and sorry sight, and for none of us more so than those who hitherto had the highest regard, if not always for Senator Missen's political judgment, at least for his sincerity, at least for his integrity and at least for his genuine libertarian convictions.

Mr Acting Deputy President, we are confronting a long or certainly very complex Committee stage debate. There will be ample opportunity, as I have said on several occasions, to canvass the particular issues that are still left to be resolved so far as the content of this legislation is concerned. I do not seek to anticipate this debate. This Bill is the product of a very long process of consultation, debate and discussion and of a very genuine attempt on the part of the Government to balance all these interrelated objectives that I have mentioned. I commend this Bill to the Senate.

Question resolved in the affirmative.

Bill read a second time.