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Tuesday, 5 June 1984
Page: 2540


Senator GARETH EVANS (Attorney-General)(8.47) —I move:

(9) Page 7, lines 28 to 42, and page 8, lines 1 to 29, clause 10, leave out the clause, insert the following clauses:

Functions of Authority 10. (1) The general functions of the Authority are-

(a) to collect and analyse criminal information and intelligence relating to relevant criminal activities and disseminate that information and intelligence to-

(i) law enforcement agencies; and

(ii) any person authorized by the Governor-General, the Governor of a State, a Minister of State of the Commonwealth or a Minister of the Crown of a State to hold an inquiry to which the information or intelligence is relevant;

(b) to investigate, otherwise than pursuant to a reference made under section 11 or in accordance with section 12, matters relating to relevant criminal activities;

(c) where the Authority considers it appropriate to do so for the purpose of investigating matters relating to relevant criminal activities-

(i) to arrange for the establishment of Commonwealth Task Forces;

(ii) to seek the establishment by a State, or the joint establishment by 2 or more States, of State Task Forces; and

(iii) with the concurrence of the States concerned, to arrange for the establishment of joint Commonwealth and State Task Forces, or for co-operation between Commonwealth Task Forces and State Task Forces; and

(d) to co-ordinate investigations by Commonwealth Task Forces, and, with the concurrence of the States concerned, to co-ordinate investigations by State Task Forces and by joint Commonwealth and State Task Forces, being investigations into matters relating to relevant criminal activities, but not so as to preclude the making of separate bilateral or multilateral arrangements between such Task Forces;''.

(2) The special functions of the Authority are-

(a) where a reference to the Authority made under section 11 is in force in respect of a matter relating to a relevant criminal activity-to investigate the matter 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; and

(b) where a reference to the Authority made in accordance with section 12 by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal activity-subject to sub-section 12 (1), to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.

Performance of functions '10A. (1) The Authority shall- (a) in performing the functions referred to in paragraph 10 (1) (b) and in sub-section 10 (2), assemble any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that it obtains in the course of its investigations, being evidence that would be admissible in the prosecution of a person for that offence, and furnish that evidence to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency; and

(b) in performing the function referred to in paragraph 10 (1) (d), endeavour to ensure that any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that is obtained in the course of investigations of a kind referred to in that paragraph, being evidence that would be admissible in the prosecution of a person for that offence, is assembled and furnished to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency.

'(2) The Authority shall, in performing its functions, co-operate and consult with the Australian Bureau of Criminal Intelligence.

'(3) Where, as a result of the performance of any of its functions, the Authority considers that a recommendation should be made to the Commonwealth Minister or to the appropriate Minister of the Crown of a participating State, being a recommendation-

(a) for reform of the law relating to relevant offences, including-

(i) evidence and procedure applicable to the trials of relevant offences;

(ii) relevant offences in relation to, or involving, corporations;

(iii) taxation, banking and financial frauds;

(iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and

(v) maintenance and preservation of taxation, banking and financial records;

(b) for reform of administrative practices; or

(c) for reform of administration of the courts in relation to trials of relevant offences,the Authority may make the recommendation to the Commonwealth Minister, or to that Minister of the Crown of that State, as the case may be.

'(4) In relation to the performance by the Authority of the functions referred to in paragraph 10 (1) (b) and sub-section 10 (2), nothing in this Act (other than section 24)-

(a) shall be taken to confer on a member, or on a member of the staff of the Authority (other than a member of the Australian Federal Police or a member of the Police Force of a State), power to interview a person in relation to an offence that the person is suspected of having committed; or

(b) shall be taken to confer on a member of the staff of the Authority who is a member of the Australian Federal Police or of the Police Force of a State a power to interview a person that the member of the staff of the Authority does not have in his capacity as a member of the Australian Federal Police or of the Police Force of that State, as the case may be.

'(5) Where the Authority has obtained particular information or intelligence in the course of performing one or more of its functions, nothing in this Act shall be taken to prevent the Authority from making use of the information or intelligence in the performance of any of its other functions.'.

This amendment opens debate on the issue of special versus general powers vested in the Authority. There will be a series of consequential amendments which will flow from this and which I will move later, peppered all around the Bill, if this particular amendment is passed. The matter in issue here is simply whether one goes down the route recommended by the Committee, that is, draw a very firm and clear-cut distinction between the ordinary level of investigative activity which the Authority is entitled to engage in and, secondly, the coercive level of activity which it is entitled to engage in pursuant to a reference. The Committee, in one of its finer defences of civil libertarian standards, took the very clear view that such a distinction ought to be rigorously maintained. The Government believes such a distinction was built into the original Bill but it certainly acknowledges that the amendments proposed by the Committee both clarify and strengthen that distinction.

The approach taken by the Opposition, which Senator Durack will no doubt enunciate in a moment, is completely contrary to that. What the Opposition seeks to do is to collapse the distinction between ordinary and special powers and in effect to allow the Authority to exercise its coercive powers whenever it embarks upon an investigation, without the whole panoply of checks, balances and constraints that we regard as quite central to the operation. The concept here is really that of the phased or graduated response. The idea is that, before the Authority moves to the stage of exercising coercive powers, which are really quite draconian and almost unprecedented except in the context of company offences, it ought to satisfy itself that ordinary police methods and ordinary non-coercive methods of investigation are in fact inappropriate. Just how it should so satisfy itself and what the tests should be is something we will come to later. But the whole series of both Committee recommendations and Government amendments here are premised on that basic assumption that that consistent distinction ought to be maintained. Beyond that I do not think it is either necessary or possible for me to say much more at this stage although I will reserve my right to reply to whatever Senator Durack might say.