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Wednesday, 6 June 1984
Page: 2645

Senator DURACK(4.45) —Mr Chairman, do you now want me to move amendment No. (29)?

Senator Chipp —Why not move amendments 29 and 32 together?

Senator DURACK —I thought the amendments which seek to remove both the Ombudsman and the judicial audit were likely to be two different issues. Perhaps we could debate them both together. We will see what happens in the debate. It will be another matter if we need to vote on both of these amendments. I am happy to do that. I will now move my amendment to the clause dealing with the role of the Ombudsman in relation to the National Crime Authority and later I will move the one relating to judicial audit by the Authority. These are really two quite separate issues and I will have to deal with them as such. I now move:

That clause 44 be left out.

Clause 44 simply applies the provisions of the Ombudsman Act to the National Crime Authority. It seeks to make the Authority a prescribed authority under the Act. This, of course, means that the investigation of complaints will be by the Ombudsman and that the provisions of that Act will apply to the Authority. In ordinary circumstances one would not cavil at that application. However, the Standing Committee on Constitutional and Legal Affairs which looked at the whole Bill in such detail and which was given expert evidence in relation to this matter has recommended that the Authority should not be subject to the jurisdiction of the Ombudsman. A number of distinguished witnesses who gave evidence to the Committee emphasised the destructive effect that the Ombudsman's powers could have on the Authority's daily operations. They pointed out that there could be, of course, the danger of the Ombudsman double thinking the Authority's administrative decisions. I believe there is great substance in the concerns that have been expressed by these expert witnesses. I am particularly impressed by the judgment of the Committee in relation to this matter. No doubt, some members of the Committee will be able to speak with greater authority than I can in relation to the evidence that was received and the reasons why they formed the judgment which was the subject of the Committee's recommendation.

Apart altogether from the recommendation of the Committee, I have the same concern in relation to this as I have in relation to the definitions of relevant offence and relevant criminal activity, namely that the targets of the Authority , people such as leading figures in organised crime and corruption who will be investigated, will use every conceivable avenue to frustrate the work of the Authority to prevent the Authority from exercising its proper role in respect of such investigations. Regrettably, this is a fact of life. We have ample proof already of the extent to which moves of a technical kind have been made. People with resources have engaged lawyers and paid legal fees to continue proceedings right up to the highest court in the land. We simply have to face that fact of life. Much in all as I dislike removing the jurisdiction of the Ombudsman in relation to any Commonwealth authority, and normally I would never dream of suggesting it, I have that very great fear in relation to this Authority for the reasons I have outlined. As I said, the Senate Committee obviously came to the same conclusion.

A very different argument applies to judicial audit. Clause 47 is framed in fairly specific terms in regard to the nature of judicial audit. It provides for the arrangement of a judge of the Federal Court of Australia or of the Supreme Court of a State or Territory every three years. I quote from the Bill, which states:

(a) to examine the operations of the Authority during the period . . . since the establishment of the Authority, or since the previous report . . . ; and

(b) to report to the Minister-

(i) whether the Authority has, during the relevant period, effectively performed its functions under this Act; and

(ii) whether the Authority has, during the relevant period, done any act or thing contrary to law or trespassed unduly upon the rights and liberties of individuals.

That is a tremendous task which is placed upon the judge.

Senator Chipp —You would need a resident judge.

Senator DURACK —We would. In fact we would need more than one judge because the judge would be second-guessing the work of this Authority with every step it takes. Everything it does will have to be second-guessed by the judge. I think it is simply a doctrinaire application of a principle to a situation which is quite inappropriate. The judicial audit of the Australian Security Intelligence Organisation is something which has bipartisan support, as we know, and it is a very different matter. The judicial audit does not have this statutory requirement, certainly not in these terms. The situation in relation to ASIO is completely different. Here we have an authority, the chairman of which is almost certainly going to be a judge. If he is not a judge he will probably be made a judge or he will be a lawyer of such distinction that he will perform the same role as a judge. Why does the Government want to have another judge judging what that judge has done? It is a quite unnecessary exercise. In the way in which the Bill is drafted, it is an impossible exercise. The Senate Committee has looked at this matter and has heard evidence, I understand particularly in this case from both Mr Justice Williams and Mr Justice Stewart, who have had experience as royal commissioners and who would see the matter very clearly. They gave their opinions that a judicial audit would prove to be quite impossible. Therefore, due to the concerns I have expressed about this and due to the support of the Senate Committee-I adopt its judgment in particular-I ask that these two provisions be removed from the Bill.

The CHAIRMAN —Senator Durack, I think it would be easier for the debate and division if we took your amendments one at a time. I am permitting debate on the whole issue of judicial audits, the Ombudsman and the parliamentary committee, but I take it that the question before the Chair is to leave out clause 44. Is that correct?

Senator DURACK —Yes.