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Tuesday, 5 June 1984
Page: 2554


Senator GARETH EVANS (Attorney-General)(9.54) —The difficulty the Government has in choosing between Senator Chipp's amendment and Senator Durack' s amendment is rather like choosing between the Huns and the Visigoths. We regard both amendments as equally destructive to the concept of the National Crime Authority as it has been worked out by an elaborate process of consultation over a very long period between the Commonwealth and the States, destructive insofar as it would create a situation that in relation to one significant area of the Authority's activity, namely, its investigation of Commonwealth offences, the Authority would no longer derive its authority from the decision of the inter-governmental committee, but rather from the reference from the Commonwealth alone. Before discussing the differences between Senator Chipp's and Senator Durack's amendments I seek leave to incorporate in Hansard the text of Senator Chipp's amendment so that for posterity people can see what we are arguing about.

Leave granted.

The amendment read as follows-

(6) Page 8, clause 11, sub-clause (1), lines 30 to 34, leave out the sub-clause , insert the following sub-clauses:

'(1) The Minister may, after consulting with the Inter-Governmental Committee, by notice in writing to the Authority, refer to the Authority for investigation a matter relating to a relevant criminal activity where the relevant offence is, or the relevant offences are, an offence or offences against a law or laws of the Commonwealth or of a Territory.

'(1A) The Minister may, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority, refer to the Authority for investigation a matter relating to a relevant criminal activity where the relevant offences include an offence or offences against a law or laws of the Commonwealth or of a Territory and an offence or offences against a law or laws of a State.'.

We regard Senator Chipp's amendment as marginally preferable, or perhaps I should say marginally less obnoxious, to the extent that it is in two parts. It would require mere consultation with the inter-governmental committee rather than a decision from it where a purely Commonwealth reference was involved, namely, involving Commonwealth law and no other laws. But as I read it, the second part of Senator Chipp's amendment would, in the case of a mixed reference involving a combination of both Commonwealth and State law, require approval from the intergovernmental committee.

I appreciate that the report of the Senate Standing Committee on Constitutional and Legal Affairs is not uncontroversial, but to the extent that it can be read as recommending only that pure Commonwealth references be within the capacity of the Commonwealth Government itself to confer upon the Authority and to the extent that the Committee made a distinction between those and mixed references and still required mixed references to be approved by the inter-governmental committee, Senator Chipp's amendment reflects the Standing Committee's recommendations. To that extent we would regard it as preferable to Senator Durack's amendment which simply draws no such distinction between purely Commonwealth matters and mixed Commonwealth-State matters. It requires any Commonwealth component of a reference, whether standing alone or as part of a larger bundle of matters to be investigated, to be not the subject of endorsement by the Committee, but rather to be the subject of merely a consultative approach with the inter-governmental committee. With that distinction explained, I indicate that I accept Senator Durack's reading of clause 11 and the effect on it of his amendment. I think the words 'included' there appearing is not to be taken as in any way incorporating somehow the concept of State laws into the text of clause 11.

The basic point still needs to be made as to why all this is quite unacceptable to the Commonwealth. In this regard I think most of the issues have already been canvassed. We are talking about a body which will depend for its effectiveness on Federal-State co-operation. Even when a purely Commonwealth law is involved, as I think Senator Hill and others have acknowledged in debate, it will depend on State co-operation for the job to be done properly and well. That State co- operation is only likely to be forthcoming on other than a grudging basis, in a wholehearted way, if the States feel that they are genuinely part of the operational role or the governing structure of the Authority.

Initially, of course, the States wanted to go much further than the Commonwealth has been prepared to concede and to establish some kind of ministerial council to run this on the model of the companies and securities legislation. That is a recipe for absolute chaos, I believe, as any of us who have had the unfortunate experience of living with that legislation would know. It is also a recipe for absolute absence of any kind of proper accountability. So the Commonwealth, giving weight and credence, as it does to accountability in this area and to effective control of the organisation, was not very keen on that. What we were keen on was giving a real rather than merely cosmetic or consultative role to the States. We have taken the view, which is not the subject of argument I now understand, that any reference in relation to a State matter should be the subject of approval by a majority decision of the inter- governmental committee. Equally, we understand and accept the States' view that where the Commonwealth proposes to give a reference to the body, the Commonwealth equally should be prepared to run the gauntlet of a majority decision of the inter-governmental committee.

For all the reasons I indicated in relation to a previous amendment, I do not believe that as a practical matter the Commonwealth would ever be denied the capacity to refer something to the Authority. The dynamics of the political process would operate to make that a wildly unlikely proposition. What we are really talking about is something that I think is of symbolic significance rather than real practical significance. Nonetheless, it is something about which the States feel very strongly and on which they have indicated their co- operation is really bound up.

The Government may be forced to accept the realities of a combination of the Australian Democrats and the Opposition on this matter but we will certainly divide on it and will have to consider our position after tonight's debate if we are defeated on this one. Whether that will necessarily mean the destruction of the whole Crime Authority concept, if the Senate persists with this approach, will depend on the reaction of the States to this particular decision if such a decision is made. I state that point calmly, in the way that I have calmly stated it in private discussion with members of the Senate Standing Committee on Constitutional and Legal Affairs, with Senator Durack and Senator Chipp.


Senator Crichton-Browne —Haven't you already asked them, Senator Evans?


Senator GARETH EVANS —I have asked them and they have reserved their position to see what the outcome of this particular debate will be. I can assure the honourable senator that some States feel very strongly on the subject and they have made that strength of feeling very clear.


Senator Crichton-Browne —Which States are they?


Senator GARETH EVANS —Particularly Queensland, which has quite publicly made clear its position on this matter through Press statements by the Minister for Justice and Attorney-General, Mr Harper. Certainly the view was very strongly put to me by the State representatives at the meeting immediately prior to the production of the Government response to the Senate Committee report. I can only communicate with as much vigour as I can muster the strength of feeling that exists on this.


Senator Hill —How could a State reasonably object to the Commonwealth reference?


Senator GARETH EVANS —Because the States themselves have to run the gauntlet of approval by their peers on a matter that may involve purely investigation of the breaches of the criminal laws of a particular State. They have accepted the principle that in those circumstances any such reference involving the vesting of coercive powers in the Authority should be, for all the reasons we discussed earlier, the subject of approval by the inter-governmental committee. Equally, we have accepted a reciprocal obligation which the States have requested of us that any reference involving purely Commonwealth law or a Commonwealth component in a proposed mixed reference will be subject to that scrutiny, that decision, by the inter-governmental committee. It is a matter of reciprocal acknowledgment by the Commonwealth of the co-operative nature of the whole venture. As I have indicated, I think it is acknowledged that the point is a symbolic one rather than one that will be of enormous practical significance but symbols rank very large in peoples' appreciation of the genuineness of a commitment to the co- operative process, and that is what is in issue here.

I conclude on the note that I really do find it passing strange and delightfully ironical that the Senate, this supposed States' House, should be contemplating rolling over the Government on what is so manifestly an exercise by the Government designed to give the States a genuine voice in a co-operative Federal-State venture. If Mr Odgers is ever to produce, with the help of the clerks at the table, a sixth edition of his volume on Senate practice, he will have to think long and hard before advancing the proposition that this chamber is some kind of residual location for States' rights sentiment. I regard the matter as ironical rather than as a matter for great neurosis, since my own views on this general matter are quite well known. Having a disposition towards the proper use of central authority where that is required does not immunise me from sensitivity to genuine State concerns and it certainly does not blind me to the desirability of Federal-State co-operation in areas of endeavour and activity where the Commonwealth simply cannot go it alone. We need the States to make this work and the kind of proposition that is being here advanced by us, obliging the Commonwealth to have its proposed references submitted to the authority of the inter-governmental committee, is a demonstration of good faith on our part and it is in that spirit, a spirit which has always supposedly ranked very high in this place, that I commend the Government's position to the Committee and urge honourable senators to reject both the Huns and the Visigoths in respect of their respective proposals.