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Tuesday, 5 June 1984
Page: 2544


Senator CHIPP (Leader of the Australian Democrats)(9.04) —The Australian Democrats cannot agree with Senator Durack's amendment, although we have a great deal of sympathy for it. It is a question of judgment, as I said during the second reading debate. Senator Durack, for the most sincere of reasons, has made errors of judgment in this area in the past. I remind him that probably one of the most serious errors of judgment in his whole political career was to be a party to the sudden disbandonment, on Melbourne Cup Day, of the former Federal Narcotics Bureau, which in one fell swoop removed the most efficient, the most honest and the most incorruptible law enforcement agency against federal organised crime in this country. He was a party to that decision , which was made in absolute good faith at the time. But this is a thing that all of us do in our political careers; we make errors of judgment. Similarly I may be making an error of judgment at this time. I remind Senator Durack that this is directly in line with the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs--


Senator Durack —That was not the impression before.


Senator CHIPP —Senator Durack interjects, and I reply to his interjection. If he looks back on his speeches on the previous issue he will see that he was relying extraordinarily heavily on the recommendations of the Committee.


Senator Missen —You made a Press statement in support of it.


Senator CHIPP —Senator Missen is a person whom I view with the lowest and utter contempt and I would be grateful to you, Mr Chairman, if you would request him not to try to assist me in any way in making my speeches. He has unlimited time in which to make a contribution but I do not even want the air polluted by his voice while I am on my feet trying to make a contribution in this debate. Recommendation 1 (a) of the Committee states:

The Bills should be explicitly framed to clearly set out the functions, powers and abilities of the Authority at both its ordinary and special levels of operation.

Recommendation 1 (b) states:

The Bills should lay down a clear mechanism by which there can be a transition from the exercise of powers and functions at the ordinary level to their exercise at the special level of operations, including an ability in the Authority, of its own volition, to recommend such transition (paragraph 1.19).

Recommendation 4 states:

Clause 10 of the Bill should be redrafted to ensure that when the Authority is investigating relevant criminal activities, whether or not under a term of reference, it has the responsibility for ensuring the collection and assembly of admissible evidence . . .

So it goes on. Recommendation 6 states:

The Bill should be redrafted to enable the Authority, as an ordinary function and of its own volition to investigate matters and to collect and analyse information and intelligence relating to relevant criminal activity . . .

Four of the first six recommendations refer very strongly to this point. If I remember rightly, the Committee was unanimous on those recommendations, with the exception of one member who wrote a minority dissenting report.

I was in a dilemma on this matter-I still am-and on most of these matters where we have competing principles. I still have doubts that Senator Durack is not right and I am. I was impressed by the evidence we received particularly from that distinguished jurist Mr Justice Nicholson who headed an inquiry and had to go to his peers to clothe himself with coercive powers. The thrust of his evidence at the time was something like this: 'I thought it was a jolly nuisance having to stop my investigation and go to my peers to clothe myself with these coercive powers at the time'. But in retrospect he said: 'I am jolly glad that those restraints were on me'. He led us to believe that any sort of crime investigating authority has to justify itself to its peers or somebody along the line for the clothing of these extraordinary powers otherwise there is a massive danger of civil liberties being infringed.

Can I just remind the Committee that all right is not on the side of one argument here. We could clothe the Authority with coercive powers from day one, which Senator Durack's amendment would do. But what if the Authority was wrong in its targeting? Let us say that it targets somebody who has been a small to relatively middle sized business person who is named cowardly in the Federal Parliament under parliamentary privilege. Let us assume the Authority says: 'Ah, that great fighter of civil liberties, Senator Missen from Victoria with a great record, has named Mr John X as being a criminal and involved in shady dealings. Ah, we must get after him'. Let us assume that from day one the Authority says: 'We will use our coercive powers to go to that person's bank and say: Right, we want his bank account and the bank record of all his dealings over the last 10 years'. That person could be ruined overnight. His overdraft would dry up. What bank would have anything to do with a person which it knows is under investigation by a national crimes authority? The word would spread through his creditors and massive damage could be done to an innocent person. I am reluctant to put this hurdle before the Authority.

Senator Durack mentioned a couple of times that the Authority should be able to act of its own volition. The Authority can act of its own volition in the ordinary functions of gathering evidence. I remind the Committee that there has been written into the Bill as a result, I understand, of the recommendations of the Standing Committee on Constitutional and Legal Affairs that the Authority will be able to gain information from government departments with a facility that hitherto no other investigation authority has had. So it may be too high to be saying that the Authority is already clothed with coercive powers insofar as government departments are concerned, but it is certainly true to say that the Authority from day one is not totally inhibited in gathering information to the extent that it can get to the stage of having a prima facie case so that it can get a reference and then clothe itself in coercive powers.

I concede the validity of Senator Durack's argument and amendment. I deliberated, along with other members of the Committee, for a long time after hearing the evidence. Senator Durack could not attend the meetings because he was not a member of the Committee. On balance, one has to make an honest judgment on these things. As far as I am concerned my judgment and that of my four colleagues at this point of time is against the thrust of Senator Durack's amendment.