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Wednesday, 6 June 1984
Page: 2659

Senator GARETH EVANS (Attorney-General)(6.12) —The Government opposes this and our arguments in this respect are now addressed to the Opposition. I hope that Senator Durack will listen with as much care as I listened to his comments on the last amendment.

I will quickly articulate four reasons why we think this amendment is misconceived and will create an enormous number of difficulties both conceptually and in its practical administration. The Mareva injunction, on which this is clearly based, is sought in a superior court having jurisdiction to give the ultimate judgment in the matters. It is an order in advance of a judgment restraining the putative defendant from disposing of his assets so as to avoid payment of the ultimate judgment. On the other hand the Democrats' proposal contemplates that a person may be charged and convicted in one court and ordered to pay a fine or compensation, or suffer forfeiture, but that the injunction be obtained in a different court. The Federal Court here is determining the duration of its order-the Federal Court is to have this power to grant injunctive relief-and accordingly will have to have regard to the likely timetable in the other court, and a whole series of other practical problems of that kind will arise. I do not pretend that this particular objection is insoluble, but it does mean that two separate courts rather than one have to be satisfied as to the relevant facts and that is very much at odds with the kind of procedure that courts are used to in the Mareva area.

The second objection is rather more serious. The only requirement here is that the Federal Court be satisfied that a particular person is likely to be charged with a relevant offence and that if convicted, he may be ordered to pay a fine. We say that this is far too light an onus, having regard to the very serious consequences for the individual or commercial organisations concerned. A person might be in the business of moving large amounts of money off shore as part of legitimate commercial transactions. He might be playing the futures markets, the international commodities markets or things of that kind. Yet because of some suspicion, which may or may not be well founded, there is the capacity to go to court and get an injunction on moving any property of this kind off shore. The only onus that must be discharged is that that person is likely to be charged. If he happens to be convicted he may be ordered to pay a fine. By contrast, under the Mareva procedures the requirement is that it appear likely that the plaintiff will recover judgment, in other words the actual merits of the case must be considered, not just the prosecution performance and whether or not someone will be charged.

Senator Chipp —But it is a fair way down the track, because a reference has already been issued by the intergovernmental committee at this point.

Senator GARETH EVANS —But the fact that a reference has been issued only means that the intergovernmental committee is satisfied that there is a real problem to be investigated that cannot be resolved by police methods as we discussed.

Senator Chipp —There is more than mere suspicion.

Senator GARETH EVANS —Yes, but the reference can be quite wide in its coverage and an awful lot of people can be the targets, quite legitimately, for a reference and yet ultimately be proved not to be a proper subject for prosecution. It is a very important point that I am making. The Authority ought at least be required to satisfy the court that a prima facie case can be established against that defendant. If the Authority has that sort of suspicion, based on hard material which does amount to a prima facie case, the objection would be less strenuous. There is a very slight onus to be satisfied here in order to get this injunction off the ground. We proposed to the Democrats that their suggestion be further amended by an additional requirement that a prima facie case should be able to be established, but regrettably they rejected that. I believe that any residual sense and credit in their amendment was very much lessened as a result.

My third point is of less significance than the second, but it still deserves to be made. The Bill, as we have said over and again, is really directed towards establishing an investigative agency, not a prosecuting agency. The present proposal for the capacity to seek a Mareva injunction, if it fits anywhere, would seem to be more appropriate for a prosecuting agency, such as the Director of Public Prosecutions, rather than this pre-prosecution investigative agency. Opening up the capacity for an investigative agency to seek this injunction is a wholly new concept. It is not new in the context of prosecutions or in the context of civil litigation, for example tax recovery, but it is very new indeed to import this particular weaponry at the stage of mere preliminary investigation before anything has been shaped up as justifying an actual charge or the introduction of civil proceedings. Certainly, the Government would be prepared to look at the need for this, examine it carefully and consult around the place to see whether something of this kind is appropriate for incorporation in the legislation. But to introduce something like this pretty much on the run- we have seen the concept for only two or three days-worries us a great deal.

My final point is procedural rather than substantive, but it is important in terms of the co-operative character of this exercise. Certainly, State underpinning legislation would be necessary to make this work. But there has not been the slightest consultation with the States on this subject and we have no idea whether they would go along with the idea of the Authority being able to exercise this kind of remedy, or of their attitudes to the power being vested in the Federal Court. It may be that we could persuade them easily enough as to the merits of that, but it is a significant additional procedure which has a lot of potential dangers and a lot of technical flaws. We ask, not so much that it be defeated, but that it be withdrawn by the Democrats in order to give us an opportunity to consider it further and move amending legislation as appropriate at some later time.