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Wednesday, 6 June 1984
Page: 2653

Senator GARETH EVANS (Attorney-General)(5.38) —Two crummy arguments do not add up to a good one. The arguments against the judicial audits were weak and the arguments against the Ombudsman were weak, and now as a result of the unfortunate success of those weak arguments, by the numerical combination of the Australian Democrats and the Opposition, we confront a situation where the main argument left on which the Opposition and the Democrats hang their hats for a parliamentary committee is the absence of provision for any kind of scrutiny as a result of their own destruction of the judicial audit and Ombudsman provisions . They have got themselves up there, having hauled themselves up by their own bootstraps, but their credibility is no better for that and the product we are left with is not something that ought to attract the support of the Committee.

There are very real dangers in a parliamentary committee operating in this area . The dangers are overwhelmingly that under the guise of monitoring, under the guise of review, we will have a parliamentary committee exercising all the coercive powers of which parliamentary committees are capable in fact to explore and investigate what it believes is a legitimate investigation, in the public interest, of organised criminal activity. But it will inevitably do that in a way that will have the potential to put at risk and in a quite serious way individual liberties. The only thing that makes the proposed amendment even remotely tolerable is the language of proposed sub-clause 43AD (2), to which we referred earlier in this debate, which states:

Nothing in this Part authorises the Committee-

(a) to investigate a matter relating to a relevant criminal activity; or

(b) to reconsider the findings of the Authority in relation to a particular investigation.

Senator Georges —How can they avoid that?

Senator GARETH EVANS —Senator Georges is correct to question the extent to which as a practical matter the committee will in fact be governed and guided by the strict letter and intent of that particular provision. A series of marginal cases will arise where the committee will be tempted, in order to do its monitoring and reviewing job properly, to seek answers to questions about the way in which particular aspects of the Authority's operations have occurred. There is a very real danger, unless this is terribly closely scrutinised and watched, of gradually, incrementally, bit by bit, the committee getting itself into a position where it regards itself as some kind of appropriate body to rampage around the community investigating organised crime. The dangers are there and are not really reduced totally, although they are certainly lessened, by the language of this qualifying clause.

The particular further concern that the Government has about any role of this kind for a parliamentary committee is whether, even if those dangers are discounted, it would really be an effective and efficient means of supervising the Authority. To be effective the Committee would presumably need to know in quite considerable detail how the Authority conducts its affairs. It would need to be able to call for information on specific matters, not in order perhaps, observing the letter of sub-clause (2), to reinvestigate or investigate those matters, but in order to see for itself how the Authority has in fact operated. That creates a situation in which knowledge of these matters would be held by the 10 members of the committee and their staff and the possibility of leakage, disclosure and so on as a result of that operation is all too obvious. If the Authority puts up the shutters and, because of its concern about leakage, refuses to disclose to the parliamentary committee any detailed information other than that which is contained in its annual report and so on, it seems to me that the capacity of the committee for effective supervision will not be over and above that which can be given by the Senate Standing Committee on Constitutional and Legal Affairs, and all the rest of the ordinary committee apparatus with its responsibility for reviewing annual reports. There is real doubt whether this committee could go further than that.

We are caught on the horns of a dilemma. Either the committee would be doing the sort of thing which existing committees can do perfectly well, in which case it is unnecessary, or it would have the capacity to go substantially further than that, in which case it is dangerous-either dangerous to individuals in terms of the enthusiasm it might muster for charging about and performing an investigative role, or, to the extent even that it does not do that, there will be other kinds of dangers about leakage to the world at large of the sorts of things that the Authority is up to. So, for a whole variety of reasons that I will not go on about as we are running out of time-it would be marvellous if we could wrap this up before the dinner break-I indicate the quite strong opposition of the Government to any proposal for a parliamentary committee in this area. We would infinitely prefer the sorts of constraints involved in the Ombudsman and the judicial audit. But the mere fact of those two safeguards having been rolled over does not in itself create any better an argument for the creation of this supposed safeguard.