Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Tuesday, 23 August 1994
Page: 77

Senator VANSTONE (5.46 p.m.) —We are debating this evening the Witness Protection Bill 1994. I feel that I have already gone through this process, no doubt because this matter has been before the Senate Standing Committee on Legal and Constitutional Affairs. I will not say that the government vigorously opposed reference of the bill to that committee, but I cannot say that it was willing to refer it. Nonetheless, the bill did go to that committee and during that process a number of flaws were identified and enlarged upon by a range of witnesses who came before the committee. I will deal with those flaws a little later in my remarks.

  It was a recommendation of the Joint Parliamentary Committee on the National Crime Authority some time ago that there should be a legislative framework for a witness protection program. For years witnesses have been protected under I am not sure what legislative authority, but nonetheless that has been the case. It is a sad fact that if we want to get at criminals, by and large we have to use the evidence of other criminals to do so. Criminals do not generally share knowledge of their criminality with the world at large. There may be people who indirectly, in one way or another, have some knowledge of certain events—are, say, witnesses in terms of identification or people who have undertaken bookkeeping or carried out financial transactions and things of that kind. Unwittingly they may have played a part in transactions which they have recorded and which have been part of a larger plan. Such people may be able to give evidence as to those matters and obviously not themselves be what we would call crooks.

  If one wants to get at organised crime, and large scale white collar crime, one has to have someone on the inside who will give information to the authorities. The equally sad fact is that those people then necessarily fear for their lives. This is especially true of drug crime. A number of murders have been carried out in Australia which quite clearly have been part of a pay-back arrangement for information given, or have occurred because people have not paid bills or have acted in ways that have upset those further up the drug chain. That behaviour has made it abundantly clear to people that if they dob in crooks, especially drug crooks, they are taking their lives into their own hands and putting them at risk.

  In exchange for obtaining that information, society needs to offer some sort of protection. The question arises as to how that is done and as to the consequences of so doing. This piece of legislation in its original form is the government's first attempt at responding to the NCA committee's recommendations that there be a legislative framework for these arrangements.

  It is a particularly distressing notion of having to rely, by and large, on the evidence of crooks to catch other crooks. Relying on the evidence of a crook really calls into question our preparedness to stand by what we teach children to mouth from primary school onward: one is innocent until proven guilty. The whole criminal apparatus is set up on the basis that we are innocent until proven guilty.

  If we are properly or improperly charged with a criminal offence, one way that defence counsel will defend us is by attacking the crown witnesses. Under this principle of being innocent until proven guilty, the crown has to show that we are guilty. The crown has to lead evidence that convinces a judge or jury to decide that it is time for us to receive some sort of sentence and have a criminal record or add to our criminal record as the case may be.

  All the defence has to do is show that there is sufficient doubt, such that the person charged does not get convicted. One way that doubt might be shown is to question the credibility of a witness. That is a very simple but fundamental point about how the criminal process works, and it is something about which we all ought to be concerned. Sometimes we slip into the comfortable misunderstanding that the operation of the criminal law only affects crooks. It does not. Lots of people get off; in other words, they are not found guilty but are back in the position, which they never left, of being presumed innocent. Therefore, we need to seriously consider the operation of these laws because innocent people are incorrectly charged. Innocent people are sometimes incorrectly convicted. When we had the death penalty, innocent people were sometimes put to their death by the state because mistakes were made. This is a vitally important area.

  So we come back to witness protection. The government had in mind that the commissioner of police and certain people to whom he could delegate some of these powers—but only a deputy commissioner for some of the powers and other people for others—could get a memorandum of agreement with these people. All of that could be kept secret, even from the court.

  All of us have read accounts in the newspapers where witnesses have got an indemnity from prosecution in exchange for providing the crown with more information. Anyone who has sat in on a trial of an indemnified witness has heard defence counsel say, `You are giving evidence here because you are getting off. You've got a motive for dobbing these other people in'. That is a fabulous way of putting the credibility of the witness to the test—a witness who, if believed, will send the accused to gaol. The credibility of that witness has to be tested.

  This is a government that prides itself on its role in human rights areas. I do not criticise the contribution it has made thus far in that area. But, for a government that so prides itself, it is amazing that it would come up with a scheme where the whole details of that agreement would be kept from the court. Defence counsel would be wanting to argue that here was a person who was a protected witness on some sort of deal, but counsel would not know what the deal was.

  I am told that, when a person is a protected witness, he or she has different expectations about what he or she will get. It is very sensible to have a memorandum of agreement as to what that person will get so that there is no misunderstanding and he does not come out three years later and say, `I was conned. I was lied to. I was promised $1 million and a house in Bali', or whatever. Under a memorandum of agreement it would all be there and clearly understood—`You give us this. We give you that.'. There are no problems with that. The problem is that defence counsel does not get to see whether there is a house in Bali, Burwood, Bankstown, or whatever.

  The government says, `There are very good reasons for that because you do not want to give all the details of the agreement away. If you do that you will probably give away the identity of the protected witness'. That makes a complete farce of giving the person the new identity. We come back to square one. At least the government has seen the light in that respect and agreed to an amendment which, in effect, will allow the details of financial support to be passed on to defence counsel.

  However, it is a disgrace that this bill was drafted in such a way that that would not have been allowed in the beginning. I come back to the point I originally made: I do not think it is an exaggeration to say that more often than not these protected witnesses are crooks. Surely the innocent person—and remember we assume that the person is innocent until proven guilty—is entitled to have his or her defence counsel get at as much information as possible to protect the innocence of the client. It was nothing short of disgraceful for the Commonwealth to come forward and originally suggest that none of the information should be available. I congratulate the government on making the change and seeing good sense in that respect.

  A number of other problems are associated with the bill, some of which the Commonwealth has sought to address. I see by amendment No.1 that a party or a possible party to legal proceedings will have to be notified that the commissioner will accept process issued by a court or a tribunal on behalf of the participant and nominating someone who will receive that process. A person might start a new life but have existing obligations. For example, he or she might have children and maintenance proceedings will have to be carried out, or such a person might be married and want to get divorced. Such a person's life just does not stop. There has to be some arrangement for handling those sorts of proceedings and this is a contribution in that respect.

  The second amendment includes a person who is no longer a participant in the program but retains the identity that he or she was given. The government's third amendment simply adds a new clause 26A to the list of powers that can be delegated only to the deputy commissioner. The fourth amendment relates to information about financial support and that will allow some of that information to be passed on.

  I personally think that in the end we will discover that more information could be given to defence counsel. I hope that in the not too distant future we will find a way to allow that because the concept of innocence until proven guilty is the fundamental basis of the whole thing. We cannot work on the basis that the crown is somehow the knight in shining armour and the defendant is guilty. That is the wrong way to look at these things. It is not the way our system works. At least this is a start.

  The government's fifth amendment is again a contribution to an infrequent occurrence. We have a protected witness with a new identity, a new business, new beard, new hair colour and all that sort of stuff and wittingly or unwittingly that person becomes a witness in some other and totally unrelated criminal or civil proceedings.

  If that person is to be a witness and someone says, `Do you have any prior convictions?' and that person says no, that is, of course, a lie. We are talking about Bob Smith, who is a crook and does have convictions, but not under his new name of Jim Brown. So that is a lie. We were going to condone that on all occasions, as we had to keep this person protected because of the initial assessment we made that it was worth giving this person a new identity, a fresh start, and so on, in order to get at this person whom we thought was a crook. Then for ever and a day we have to protect that person. Potentially, we may be allowing that person to lie to a court. It is not acceptable to be legislating to allow that.

  Some people would say, `That is not likely to happen. How unlucky are you going to be to be a witness twice in criminal proceedings?' The first time that person is a protected witness it will be for big criminal proceedings. By and large, someone is not going to be a protected witness for some tacky little offence. It has to be something really worthwhile to go to this effort. But the subsequent offence in respect of which the protected person is giving evidence may be a much less serious criminal offence.

  We might think it is a lesser offence, but the stark reality is that most people charged with something for which the possible penalty is a gaol sentence do not think of it as a tacky little offence. It is their innocence and their freedom and they are desperate about it. They want the opportunity for their defence counsel to get stuck right into whatever witnesses are going to give evidence against them. We should not be depriving them of that. But once we make these deals with people who more often than not are crooks and we protect them for ever and a day we, for ever and a day, allow them to be a new person with no record in the courts.

  Although I cannot recall the technical name for it, there are good reasons for wiping the slate clean after a period of time, to allow people to rehabilitate themselves and not carry this mistake with them for the rest of their lives once they have paid the price. I am sure that you, Mr Acting Deputy President, know all those arguments. There are good reasons for encouraging people who have had a criminal conviction to get a clean slate, but we need to understand that, once we make one of these deals, it is for the rest of that person's life, by and large. The other people that might be affected later down the track, unrelated to the proceedings in which we wanted this person to be protected, do not get this chance.

  The government has an amendment. I want to make this point quite briefly because, if I make it now, I might not need to repeat it when we come to the committee stage. I saw the supplementary explanatory memorandum issued by the government, and it is quite deceitful. It states that, if a participant or former participant with a conviction—one of these people I am talking about with a record—is later required to give evidence in criminal proceedings in his or her new identity, the person must advise the commissioner. That is a good idea. The commissioner is then required to take appropriate action.

  This explanatory memorandum, issued by the government to explain what this clause says, further states that, if the person is to give evidence, the commissioner shall provide a copy of the person's convictions to the court, the prosecutor, the accused and his or her legal representative—in other words, give the defence counsel of this other person later down the track the right to challenge this witness as being unreliable because he or she is a crook. It further states that this will have the consequence of the witness and his or her family being provided with a further new identity and relocation again.

  I understand the consequences of giving up the identity of the protected witness and how that person would have to be relocated at vast expense. I will come to the difference between those two later. But this clearly says that the commissioner shall provide a copy of the person's convictions. When I look to the clause, strangely it does not say that. It does not say anything like that. They are completely inconsistent. The clause says:

After being notified under subsection (1), the Commissioner may take any action he or she—

I suppose the AFP thinks it may have a female commissioner soon but, since we only recently got a new one, I doubt that it will be soon—

considers appropriate in the circumstances, including disclosing to the court, the prosecutor and the accused person. . .

First-year law students learn the `may-shall' distinction. `May' means `Do it if you like, if you think it is appropriate'. But the explanatory memorandum says that the commissioner shall provide a copy. I think that is downright deceitful. It is not a typo. There is no way one would type `shall' instead of `may'. They are different words with different meanings. Something has gone wrong. I understand why the clause may be better left with the word `may'. It may be that the person's evidence is not crucial. A judgment has to be made here as to the balance in the cost—and not just in dollars. The enormous cost and effort involved in a further relocation of a protected witness must be balanced against what might be a minor criminal charge.

  I remind those opposite that, if there is a potential for a custodial sentence or a large fine, and the charged person does not have a lot of money, it is that person's liberty that is at stake. And somebody is going to decide whether or not they will let the court know that one of the witnesses that is going to put that person in the clink is a crook. Somebody will decide that and nobody will report on who it is. I think there is something wrong. (Time expired)