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Wednesday, 3 October 1984
Page: 1163


Senator MISSEN(7.13) —Tonight I bring to the attention of the Senate and I hope to members of the National Crime Authority some errors in their understanding of their powers which it is important should be brought forward. I refer particularly to an article which appeared in this afternoon's edition of the Melbourne Herald. It is the third in a series of articles by Peter Game in relation to the problems of the National Crime Authority, and it consists mainly of interviews with the three members of the Authority, Mr Justice Stewart, Mr John Dwyer and Mr Max Bingham. The quotations in that article indicate that there is a considerable misunderstanding by those members of the problems which face them and of the ways in which they may well be frustrated. It is the concern of this Parliament that we should know these problems.

In this afternoon's article there are quotations from statements made first by Mr Justice Stewart in regard to the powers of the Authority and the way in which it may be able to bring to public attention areas where it has been frustrated. Mr Justice Stewart said this:

We have made it absolutely clear that we are not the lackeys of any government. We are independent and we intend to remain independent.

I greatly applaud those sentiments and I hope that members of the Authority will be in a position to remain independent. Insofar as the Act is deficient, and the Senate well knows that I believe it to be extremely deficient, I hope that it will be changed so that the members will be able to maintain their independence. The article went on to say:

Nonetheless, the commissioners already have sought an amendment to their Act which could have the effect of making political interference less likely-they want the legislation changed to compel the Inter Governmental Committee (IGC) to give reasons when it vetoes a particular investigation.

As the Senate will recall, under this ramshackle Act that the members of the Authority are saddled with, they can only investigate in the same way as any of us can until they can convince this Inter-Governmental Committee that they need coercive powers to call witnesses and get documents. If the committee agrees and gives them that reference, they have the power. They want the legislation changed so that the committee must give reasons when it vetoes any reference. But the reasons are of little use, unfortunately, if they are not on the public record. Mr Justice Stewart said that he wanted to ensure that the Inter- Governmental Committee's reasons for veto were on the record. It is no good their being on the record if the public does not know about them and these matters cannot be disclosed. This is where the members have been misled.

I refer to the statements made by Mr Bingham in the same article. He said:

It is true that there is a right to veto that any jurisdiction (minister) on the IGC can exercise if it doesn't want a particular topic examined.

But I think it is important to realise that if that happens we have a couple of courses open to us.

Most important, we have power under the Act to hold a public hearing for the purpose of informing the public about matters of public interest.

We would take the view very strongly that if we asked for a reference on grounds that we thought were appropriate and it was refused, we would use a public hearing to let it be known that it had occurred.

I very much applaud those sentiments, but unfortunately Mr Bingham has misread his Act. He has not realised the type of restrictions that are imposed in that Act. It appears clearly that further amendments will be required.

Before turning to the Act and showing what is wrong there, I mention that Mr Justice Stewart had last week, on 27 September 1984, as reported in the Australian, referred in very strong terms to the warning that members of the Authority would not be lackeys. That article said:

The judge warned the Authority may hold public sessions to announce any refusal by the inter-governmental committee controlling the Authority to make references to it allowing upgraded crime investigations.

The statement is a strong endorsement of the stand by the Prime Minister, Mr Hawke, in refuting Opposition charges that the Authority is 'a toothless tiger'. The Deputy Opposition Leader, Mr Howard, reacted by describing the judge's statement as 'gratuitous'.

I think that was a very generous description on the part of Mr Howard because as well as being gratuitous the statement also happens to be quite wrong and quite mistaken. I wish to demonstrate just how toothless this tiger unfortunately is. It is wrong that we should hide the fact that this is so. If one looks at the terms of the Act and bears in mind that two members of the Authority think that the public hearing clause will overcome this problem, one sees that this is not so. The public sittings provision, which was put in as a sop to the Senate Standing Committee on Constitutional and Legal Affairs-it was a rather weak suggestion by the Senate Committee which hoped that it would appear to be useful -merely entitles the Authority under section 60 (1) to hold sittings in public ' for the purpose of informing the public or receiving submission in relation to the general conduct of its operations'. It is, as it were, a public relations function. If one looks at sub-section (5) one sees the real problem. Sub-section (5) says:

The Authority shall not-

(a) divulge in the course of a sitting held under sub-section (1); or

(b) include in a bulletin published under sub-section (4), any matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

So anything that the Authority might want to disclose that might damage the reputation of 'a person', any person, cannot be divulged. It is hard to imagine any reference sought by the Authority that would not damage some person. It is obviously directed against the activities of certain persons.

When one turns to section 61, the annual report provisions, which is the opportunity that the Authority might have to disclose information and perhaps to disclose the refusal of permission to embark upon an inquiry, one finds this in sub-section (5).

Where the Inter-Governmental Committee resolves that the inclusion in a report by the Authority under this section of particulars of the outcome of a request made by the Authority under sub-section 10 (1)--

that is the sub-section relating to an application for a reference--

might prejudice the safety or reputation of a person, the operations of law enforcement agencies or the fair trial of a person who has been or may be charged with an offence, the Authority shall not include in such a report particulars of the outcome of the request.

In other words, the Inter-Governmental Committee always has the power to refuse in those wide terms any reportage of the fact that the Authority has been refused permission to embark on that inquiry. The real ability for the public of Australia to know the way the Authority has been frustrated is not there. That is one of the major reasons for my minority Committee report. The Opposition adopted it almost in full and moved amendments which if carried, would have taken away most of these problems. In my opinion one of the features of this matter is the lack of publicity given to the power of that Inter-Governmental Committee to suppress knowledge of what it has done. I refer to comments made by the head of the Authority in a report in the Age of 27 September. It is a report of the same Press conference I quoted from the Australian. The report states:

Mr Justice Stewart said that he would seek extra powers . . . 'if with experience, we find that our powers are lacking in a particular area'.

I am saying that they are clearly lacking in a particular area. I do not say this in criticism of the new members of the Authority but it is necessary for this Parliament to set up the Joint Committee on the National Crime Authority which the Government has delayed, so it can assist in seeing that changes are made so that the Authority acts effectively. It is no good Mr Justice Stewart saying, as he did at the Press conference reported in the Age:

Let me assure you that nobody is going to tell us what to do. We'll pursue the people and the crimes that we see, don't worry about that.

I admire his hopes and intentions but I am saying that it ought to be clear to the Australian public and to the members of the Authority that deadly deficiencies are already coming forward and they will, as they unfold and if unchanged, regrettably lead to the proof of the muzzling of this Authority. I draw these matters to the attention of the Senate as a result of the article which appeared today in the Melbourne Herald which is so defective in this regard.

I hope we will have greater concern, and the people of Australia will have greater concern, to see that the wool is not pulled over our eyes by the Government which endeavours all the time to suggest that it has given sufficient powers to the Authority. It has not. The Costigan Royal Commission of Inquiry on the Activities of the Federated Ship Painters and Dockers Union is to be passed away, inadequate powers are to be given to the Authority and muzzling powers are to be given to an Inter-Governmental Committee. This must constantly be drawn to the attention of the public of Australia.