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Friday, 5 October 1984
Page: 1297

Senator MACKLIN(9.49) —I thank the Attorney-General (Senator Gareth Evans) for the eloquent speech he made to the Australian Democrats. I have some questions and want to make some comments on the general proposition. The Attorney was making a case in relation to the principle of using unlawfully obtained material. As he suggested, that is certainly a matter of judgment. However, in the debate that we had on the Opposition's amendment to the second reading motion, I indicated that we did not support the reference to the Stewart Royal Commission of Inquiry into Drug Trafficking because it demonstrated a lack of confidence in the National Crime Authority. If that is the case, it would possibly suggest, conversely, that if this material were not to go to the National Crime Authority it would be an indication of a lack of confidence in the Authority. Therefore, following the position that we took in relation to the Opposition's amendment to the second reading motion, the argument would have to be that we would support its amendments moved at the Committee stage.

The Telecommunications (Interception) Amendment Bill, particularly proposed new section 7B (1) (a), presents another problem. If the material were to go to Royal Commissioner Stewart in his capacity as a royal commissioner, it seems to me that there would be some difficulty in then saying that that material should not go to the National Crime Authority, whose Chairman happens to be the same person. If, in his capacity as a royal commissioner, he discovers material which seems to him to be pertinent to other activities he is currently undertaking as the Chairman of the National Crime Authority, what type of schizophrenic operation would he have to go through in making sure that he does not leak that material to himself? Since he is the same person as the person operating the Commission and we are giving him this material in that capacity, it seems to me to be odd, quite aside from the principle involved, that the Authority under the same person should not be receiving it. That in no way canvasses the principle of the matter. I just think that in the circumstances it would be odd if, indeed , the royal commissioner did not have access to and the use of that material in both his capacities since they are likely to intercept in some quite marked ways .

I do not think the Attorney-General put forward any substantive reason for not allowing this material to go to the National Crime Authority. As I read the amendments moved by Senator Durack, the clear intention is that the Authority could use that material but that it would not be compelled to do so. For example , in amendment 6 to clause 3, which seeks to add proposed new section 7B (5), if a document is given to the Authority it may make use of that document for the purposes of the performance of its functions. That seems to be the general context, because the other specifications under paragraphs (a), (b) and (c) are only specifications of that general proposition if the Authority goes ahead. There seems to be no obligation, at least on my reading, on it to do anything.

Finally, I raise the point that the Attorney-General, in opposing these amendments, talked about the possibility of doing this at a later stage if it seemed necessary to do so. I wonder why, in this circumstance, one would be bothered not doing it now, on the basis that the Authority will only have a reference in relation to any of this material if it goes to the Inter- Governmental Committee anyhow--

Senator Gareth Evans —No.

Senator MACKLIN —It receives the material--

Senator Gareth Evans —But it can use it for its general investigative powers.

Senator MACKLIN —It can use it for its general investigations, yes; but then if it wants to make use of the material further it must seek a reference from the Inter-Governmental Committee. It can use it for its non-coercive investigations, certainly; I am not denying that. Indeed, it is because it is able to use the material in its non-coercive, normal investigatory operations, that one may wish it to have the material, because it may lead to the Authority undertaking certain lines of investigation and even asking for certain references from the Inter-Governmental Committee.

Senator Gareth Evans —No, but one of the things the Crime Authority can do in the exercise of its general investigative power is to package prosecution evidence and give it to local law enforcement agencies without having a reference at all. So one is opening up the whole question of the use of illegally obtained evidence.

Senator MACKLIN —I am talking in terms of the Authority itself and its subsequent investigations rather than the other types of activities it has been given the power to do out of the work it does in its non-coercive role.

On all those counts it seems to me that there really is not a great deal of substantive reason why one would not want to do it. I think also there is at least one good reason for doing it, given the situation of the Chairman and the Royal Commissioner being the same person. In those circumstances it seems a good reason for doing so in relation to these documents. I do not think that that necessarily has to be taken as a general precedent for other types of activity. However, it seems to me that that in many ways might also be useful. I do not want to make any sort of hard statement on the matter, but it is a point of rather exquisite judgment as to whether indeed we use unlawfully obtained material which is excessively damaging and excessively useful in the fight against organised crime. We may be holding back far too far in not allowing the National Crime Authority to make use of that material. Of course, such material still would not be able to be used at a later stage, particularly in terms of court proceedings. However, that material may give the Authority a line in investigation which opens up lawfully obtained evidence at a later stage.

Senator Gareth Evans —There is no absolute barrier for it being used in court proceedings. It is a matter for the discretion of the court.

Senator MACKLIN —Well, discretion--

Senator Gareth Evans —So you are opening the issue up.

Senator MACKLIN —Yes, and I think that in those circumstances probably the most that can be done-probably at the moment I lean in favour of this-is to allow the Authority to make use of that type of material and rely on the courts in their discretion to decide whether it will be admissible evidence. I think this is an area of judgment on which people differ without in any way being for or against crime. I think it is a matter of the judgments which one wants to make in terms of ability to fight crime as against the also very important demands of the protection of people's individual liberties. As the Attorney-General said, where that line is drawn in many circumstances is a very difficult problem. Certainly, at the moment I cannot see any reason why the amendments proposed by Senator Durack should not be accepted. On the face of them they seem in their intent to be a useful adjunct to the work that the Authority will be carrying out.