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Wednesday, 6 June 1984
Page: 2676


Senator DURACK(8.44) —I put down some amendments on behalf of the Opposition in relation to these matters, the purport of which is to oppose the new amendments that the Government has moved. I have been troubled by this proposal of the Senate Standing Committee on Constitutional and Legal Affairs since I first became aware of it. I have given the matter a good deal of consideration and it still concerns me that the nature of the immunity which will be in statutory form should be as wide as the amendments propose and which the Committee recommended. The fact that the Committee has recommended it is, of course, a matter which has to be given very considerable consideration. But I fear that the width of this amendment may prove to be an impediment in the investigation of the serious crime that this Authority will be investigating.

I am aware that the general rule will be that the prime targets of an investigation will not be summoned and will not be given immunities at all so, as things go along, according to theory, the problem will not arise. However, it became quite clear to me in discussions that I had with prosecuting authorities in the United States of America a couple of years ago, when I was first concerned with this matter, that things do not always go according to plan or according to theory and that in fact sometimes one finds that one has called as a witness at an early stage of an investigation the person who proves to be the prime target. If that person has been given an immunity in wide terms, of course it becomes almost impossible to obtain a conviction against him or her in subsequent prosecutions. This derivative use again sounds very nice in theory. I think the Attorney-General put the argument in favour of it in the best light possible. I suppose in many cases it is only fair and reasonable that the immunity should have that effect. But nevertheless, if a leading figure in an organised crime syndicate has in fact been called and given immunity, one can virtually kiss goodbye to any chance of getting a conviction, no matter how much evidence is obtained or how strong the evidence may be. He will always be able to argue, and will keep arguing until the cows come home, again with all the resources he will have available to him and all the appeals he will continue to make. He will have those resources to ensure that he never gets convicted. That has been the experience in the United States.

We are not doing something with this Authority that is unheard of. The sort of debate I have listened to on this subject over the last two years indicates that somehow or other we are embarking upon some terribly revolutionary assault on people's civil liberties and so on. Nothing can be further from the truth. The ideas that are essential and basic to this proposal are ones which have been the features of the Constitution of the United States for many decades, probably a hundred or more years. There they have the Fifth Amendment which protects the privilege against self-incrimination. That has been interpreted by the courts in this derivative use. The United States has developed it in that sense. It is not a concept that has been developed in Australian law. But the United States has had the experience of this development and it has suffered. The advice that I received was to the effect that this does create very real problems. The United States of America has experienced these problems, and therefore I am very concerned about this proposal. I agree that the form of the immunity should be given by the prosecutor, either the Attorney-General or in fact now the Director of Public Prosecutions. The granting of immunities is essentially a responsibility of the prosecutor, not of the investigator. I hold very strongly to that view. But I think it would be far preferable if the prosecutor who gives the immunity had the judgment available to him as to the form of the immunity.

The form of the immunity that has been provided in a statutory form in this Bill is a form of immunity which, as Attorney-General, I found was acceptable to most people who wanted to give evidence and who wanted immunity to protect themselves. It was proving to be quite satisfactory. On the other hand, sometimes one has to give an immunity in a much wider form, and it has to be tailored to the circumstances of the particular case and the person who is seeking it. In regard to the importance of the evidence one makes a judgment as to whether one gives it in one form or another. I think it would be far better if that immunity were granted at the discretion of the prosecutor.

Again, I take note of the concerns that were expressed by the Senate Committee in relation to this matter. I take note of the concerns that people have about the granting of these new and extensive powers in this Authority. It may well be new to Australia, but as I said, it is old hat as far as the United States is concerned. It rather staggers me that all these concerns have been expressed about the Authority's powers in this country by civil libertarians when, in fact , the powers have been exercised in the United States for decades. With all its Bills of rights, the Fifth Amendment and so on, these things are dealt with as a matter of course. Nevertheless, there are concerns in Australia. It is new legislation. If it is going to allay a lot of fears by having an immunity in this form I do not propose to make a great issue of it in this debate, but I must register my concern about it.

I hope that the Attorney-General-although apparently he will not be administering the proposed Act; nevertheless he has responsibility for the overall administration of law and justice-will take a close interest in the way this matter works. Certainly, the Director of Public Prosecutions, who will be granting immunities, comes under his jurisdiction. I will be very interested to hear how the granting of immunities in this form works out in practice. I hope that it will be monitored very closely. If it is proven in practice that people who are major figures in crime syndicates are able to escape conviction because of the granting of immunities of this kind-they have to be granted in this form because of the statute; that is what this amendment requires-I hope the matter will be reconsidered and appropriate amendments will be proposed to prevent the misuse of this type of immunity which the Government has proposed. Although I do not propose to vote against this amendment-I am prepared in this case to accept the views of the Senate Committee-I must express my very grave concern about it and wonder what effect it will have on the proper and successful operation of this new Authority.