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Wednesday, 6 June 1984
Page: 2646


Senator GARETH EVANS (Attorney-General)(4.53) —The Government believes it is crucial that there be effective counterweights to the operation of the National Crime Authority, and we have said that over and over again in a variety of different contexts. The two institutional counterweights that are here proposed are, we continue to believe, important to maintain. We believe very strongly in the desirablility of keeping the Ombudsman, for reasons I will spell out in a moment. We accept that the arguments for a judicial audit procedure are perhaps less strong, and certainly we could live with the removal of that provision, although we continue to adopt the view that its retention is desirable. I think what needs to be appreciated about the judicial audit provision is that although the terms in which the obligations upon the auditor are expressed seem at first blush to be fairly wide-ranging and fairly absolute, all that is really proposed-I believe this would be consistent in practice with what is workable and with the technical letter of this amendment-is that the judicial auditor be there as someone who is looking over the shoulder of the Authority in the same way as we have talked about the context of the Australian Security Intelligence Organisation, not so much by his presence guaranteeing that everything that happens in the Authority will be filtered through his hands , but really there as a standing disincentive or deterrent to the members of the Authority doing anything which is unconscionable or which cannot withstand scrutiny.

The capacity the judicial auditor will have which others, for example a parliamentary committee, would lack, is the capacity to go in and look at individual files, not on the basis of any prereceived complaint but rather in a random way, thus being able to keep an eye on the organisation and ensure that it does not get that sense of insulation from scrutiny which organisations such as this are perhaps all too prone to do. That very briefly, I guess, is the argument for the concept of a judicial audit. We believe the language is not such as to demand that he second-guess every single thing the Authority does, but rather that he just be there as a standing deterrent to misbehaviour. Under those circumstances the conclusion of the Committee that the requirement for a judicial audit is illusory, we believe is an over-reaction. Having said all that , I accept that provided there are other safeguards of one kind or another in place, the judicial audit is not really crucial to the effective operation of the whole thing and not crucial to the package of civil liberty protections that we have been urging.

When it comes to the Ombudsman side of it-I hope that Senator Chipp has still got an open mind on this issue-we feel very strongly that this avenue of redress should be maintained. I put the point in a number of ways: First, it really seems to us to be a case of having to justify the exemption of this particular statutory body from the Ombudsman. It is the case that the Ombudsman has a roving brief over Commonwealth instrumentalities generally, and the principle that citizens who feel that decisions are being made about them, or activities are occurring in relation to them should be able to complain to the Ombudsman in relation to activities of public authorities is one that has become deeply embedded in our administrative law and practice and there would have to be excellent reasons advanced for removing that avenue of redress before the argument really takes wing. To just say that an insufficient affirmative case has not been advanced for establishment of an Ombudsman is to miss the point about the way in which the whole Ombudsman remedy is part and parcel of our existing administrative operations, and very properly and desirably so.

The second point I make about the Ombudsman-this is a particularly crucial one, I think-is that he is there as an avenue of redress really for the little people who are caught up by the operations of the Commission in circumstances where they feel themselves embarrassed or prejudiced. The Ombudsman will not be of any particular utility at all to the kinds of people that I know Senator Chipp and others have in mind; the top professional criminals who have access to pricey legal advice and all the money in the world to pursue down every particular burrow every procedural remedy that is available to them. We have forms of redress and opportunities and avenues for challenge, so far as those people are concerned, already built into the legislation in what I believe is an uncontroversial way, with the administrative decisions judicial review proceedings and the proceedings proposed to be established now by the new section 25A of the Act.

Those avenues of redress are there, and to the extent that jurisdictional points can be taken, one can imagine they will be taken. But the Ombudsman is there to cope with the complaints or the concerns of essentially smaller people who are caught up in this process in one way or another and who feel they have not had a fair go and want someone speaking for them in this institutional machinery. To that extent the Ombudsman will be able to come in and seek the production of files and to, in various ways, keep the organisation on its toes. Perhaps it is not likely to be quite as effective in an all-round sense, as the judicial audit process is, because the Ombudsman will be able only to come into an organisation and look at individual files in response to complaints. But that capacity would be there and it is a very important mechanism for external scrutiny that we believe should be there to keep the Authority on the straight and narrow in terms of its continuing sensitivity to the effect of its operations on individuals.

I make the further point, for those who should be minded to think that the mere existence of an avenue of complaints and investigations through the Ombudsman will itself somehow inhibit the effective operation of the Authority, that of course it is the case that an Ombudsman's investigation does not operate in any way as a stay of proceedings on the Authority. One is not obliged to shut up shop while some point is taken by the Ombudsman or by somebody in the courts seeking to apply some particular rule of law. The whole point about the ombudsman procedure is that it is informal and that it can operate alongside, and parallel with, the continuing operations-and investigative operations-of the agency in question. There is no reason to suppose that the Authority will in any way in a practical sense, be ground to a halt by a series of requisitions or interventions in its procedures by the Ombudsman. That has not been the experience elsewhere in the bureaucracy, although some extravagant claims are occasionally made by certain rear-guard resisters to the ombudsman concept. I have no reason to suppose that it will be the experience here.

The final point I make, as a corollary to that last point, is that so far as the Australian Federal Police is concerned there is a procedure already in existence whereby complaints can be made to the Ombudsman about alleged maladministration and misconduct in the conduct of police investigations, a very closely analogous state of affairs to the operations of the Authority that we are here talking about. It is my understanding that in that context the ombudsman system has worked very well indeed although on the face of it it would have all the same potential that some people worry about for extravagant interference in the operations of the police force. It has not been the source of great concern to the police and it has been an excellent additional avenue of assistance for many individuals in the community. For all those reasons, and against the background of the obvious desirability of having a multitude of checks and balances built into the operation, the Government very strongly urges the Committee to stay with the ombudsman concept.