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Tuesday, 2 October 1984
Page: 1011

Senator MESSNER —Has the Attorney-General read the strong criticism of the powers and effectiveness of the National Crime Authority from two distinguished former judges and royal commissioners published in yesterday's Melbourne Herald? In particular I ask whether he noted Mr Justice Moffitt's view:

The way it has been set up I don't think it will work.

Did the Attorney note Mr Justice Moffitt's concern about the Government's power of veto? I ask whether the Attorney has further noted Mr Justice Woodward's comments:

However, I believe the new Authority will have no effect because it lacks teeth .

Is the Attorney also aware of the views of Mr Tom Rippon, Federal Secretary of the Police Federation of Australia and New Zealand, who has described the Authority as nothing more than a paper tiger? Will the Attorney-General now concede that the Authority is clearly underpowered and ill-equipped to handle the job, given that the great majority of people with first hand experience in the fight against organised crime have clearly supported that view? Finally, will the Government immediately introduce amending legislation in order to make the Authority the powerful and effective body that all Australians want it to be ?

Senator GARETH EVANS —I have noted the views of former justices Moffitt and Woodward. I heard them before in fact here in this chamber at the seminar held in the middle of last year at which people from all parties and all areas of professional expertise were present and in the course of which views of that kind for and against the kind of authority which has now emerged were very widely canvassed and thoroughly reported.

Senator Missen —You heard it?

Senator GARETH EVANS —The decisions were made by the Government and by the Senate in the light of those arguments put backwards and forwards and were dealt with with great thoroughness by the Senate Committee of which Senator Missen, who is interjecting, was a member. The legislation which has emerged is, we believe, perfectly satisfactory to do the task, notwithstanding the sniping that continues to be directed at it by various people, some of whom should know better.

Let me advise the Senate of a number of considerations which lead me to insist upon that proposition. For a start, the Crime Authority will have almost double the resources of the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union. In its last full year of operation, the financial year 1983-84, the budget for the Costigan Commission was $5.9m. It had a staff of just over 100 people. The budget for the NCA for 1984-85 is $8.6m -this is only for nine months-with its budget for the full year likely to exceed $10m. It will employ approximately 200 people. Another important factor to consider, before we get on to the formal legal powers available to the body, is that the NCA is made up of three members, including the Chairman, each of whom is able to exercise the full powers of the Authority. It is a situation, as Mr Justice Stewart said last week, of 'Costigan times three'. Thirdly, it needs to be appreciated that the role and responsibility of the NCA are specifically to assemble admissible evidence, not just to produce reports for governments, but evidence which will successfully found prosecutions. The way in which its powers are structured, particularly as to the gathering of evidence which can be used in subsequent prosecutions, is very squarely directed to that objective.

The important thing to appreciate, which does not seem to have been appreciated in the public debate so far, is that the National Crime Authority has a number of additional powers which are not available to a royal commission and which make it peculiarly well equipped to perform the particular task it was established to do. Some people whose sole experience of these things is in terms of traditional royal commissions may not have fully appreciated the extent to which this is so. Let me indicate what these additional powers are.

First of all the Authority has general access to information that Commonwealth agencies may be obliged by statutory secrecy provisions to keep secret from a royal commission. Secondly, the Authority is able to apply to a Federal court to obtain and retain a person's passport to stop his leaving the country where there are reasonable grounds for suspecting that he may be about to flee. A royal commissioner has no equivalent power. Thirdly, the Authority can apply to the Federal Court of Australia to issue a warrant for the arrest of a witness where there are reasonable grounds to believe he is likely to leave Australia to avoid giving evidence to the Authority. Again, a royal commission has no equivalent power. Its power to issue warrants for the arrest of witnesses is limited to the apprehension of witnesses who fail to comply with a summons to attend the commission. That will not stop the horse from bolting. That was a point that was made with some vigour by the Senate Committee and it was a point that was taken up and accepted in the final legislation.

Further, and crucially important, evidence given before the NCA may be used in prosecutions except in criminal proceedings against a person who has been protected by indemnity. Evidence given, by comparison, to a royal commission cannot be used in evidence against that witness in any criminal or civil proceeding other than a perjury proceeding. The reality is that the protection against self incrimination, which traditionally applies in a royal commission, is one that does not stop the evidence being extracted from the witness but certainly stops its being used in subsequent proceedings. That makes royal commission evidence very often worthless from the point of view of an effective attack on organised crime, as distinct from simply showing where organised criminal activity is going on. The NCA is the body with teeth in this respect. Royal commissions lack them. The National Crime Authority Act further expressly gives the Authority power to enable arrangements to be made for the protection of witnesses. Royal commissions, by contrast, have no such power. The NCA is not constrained by narrow terms of reference, as I said in answer to an earlier question, and has a wide-ranging investigative power, and to the extent that it wants to exercise coercive powers there are a whole series of routes by which it may obtain such powers. The concept of a State veto, which has been so widely canvassed, is of course not now, if it ever was, part of the legislation, certainly not so far as Commonwealth matters are concerned.

I think what also needs to be said, when one is talking about the effectiveness of the Crime Authority and the teeth and the armoury with which it can operate, is this: All States are involved in the Crime Authority, not just Victoria, as is the case with the Costigan Commission. Every State has notified its intention to participate in the workings of the Authority through the intergovernmental committee. I cannot overemphasise the importance of this aspect of it. The Costigan Commission by comparison has no mandate, no legal authority to investigate offences against any State law other than Victoria. Again, that is the point that has been massively neglected in all the discussions that have gone on about the comparative virtues of the Costigan Commission as compared with the National Crime Authority.

Senator Button —There will be dreadful repercussions when they get going in Western Australia.

Senator GARETH EVANS —Indeed. There is a formal mechanism in the crime authority legislation for achieving the co-operation of law enforcement agencies. There are more than 30,000 police in Australia and it would be quite irresponsible to ignore that enormous resource in the fight against organised crime. The National Crime Authority Act expressly provides for that in a way that is not the case under the powers or functions vested in any royal commission under the Royal Commission Act. The National Crime Authority Act expressly provides for the Authority to work with the law enforcement agencies, including the Australian Bureau of Criminal Intelligence, in relation to the collection and dissemination of criminal information. The Authority can itself arrange for the establishment of joint task forces and can itself co-ordinate investigations by those task forces so that the national effort against organised crime is maximised.

Neither the Costigan Commission nor any other royal commission can exercise any of those statutory functions. So when one puts together the structure of the Authority, its mode of operation and its broader charter by virtue of the role of the States in this particular model as compared with any given royal commission, and when one looks at the actual powers that are vested in it, one sees that all those considerations combine together to identify for the nonsense that it is the claim that is being peddled for crude and opportunistic political reasons by the Opposition on this occasion that the NCA has no teeth.

Senator MESSNER —I wish to ask a supplementary question. The Attorney-General has spent all his answer talking about the comparisons of the powers of the royal commission with those of the NCA. My question addressed itself to the weaknesses of the NCA itself. In particular, the Attorney-General skated over very simply the question of the States' power of veto. Does that not represent a very profound weakness in the powers of the currently established NCA?

Senator GARETH EVANS —The most profound weakness I can identify in this chamber at the moment is inside the skull of Senator Messner. In talking about the need, under the legislation, for a State actually to participate in the vesting of a reference to the Authority before that Authority can investigate, using coercive powers, a crime against that particular State, what he and many other people fail to appreciate, in pointing out that fact about the legislation, is that no Commonwealth body has the constitutional power or the capacity to investigate, using coercive powers, offences against the law of a particular State without the co-operation of that State. Anyone who claims to the contrary demonstrates a profound, total and comprehensive lack of understanding about the constitutional ground rules that prevail in this country. The Commonwealth can, of course, investigate offences occurring within a State if they involve breaches of Commonwealth law. A Commonwealth authority can, of course, investigate, using coercive powers, offences against the law of the State if the State in question has vested that capacity in the Commonwealth agency. But to talk about the State veto idea as if it was something which existed as a deliberate policy decision by the Government and the governments of the various States to enable the NCA to be prohibited from embarking upon some enterprise that it was otherwise minded to engage in is not only folly; it is a crude piece of misrepresentation of what the honourable senator, if he has any brains at all, must know to be the truth.

Senator Chaney —May I ask the Attorney-General to table the paper from which he has quoted.

Senator GARETH EVANS —Certainly.