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Thursday, 7 December 2000
Page: 21027


Senator IAN CAMPBELL (Manager of Government Business in the Senate) (9:47 AM) —I table explanatory memoranda relating to these bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

NATIONAL CRIME AUTHORITY LEGISLATION AMENDMENT BILL 2000

This Bill is an important measure to enhance the effectiveness of the National Crime Authority in combating organised crime. In particular it will create a significant deterrent to those who seek to obstruct and frustrate the Authority's hearing process. At the same time, the Bill contains important accountability measures, notably a role for the Ombudsman and clearer reporting requirements to the Parliamentary Joint Committee on the Authority.

The National Crime Authority was established in 1984 as a national law enforcement agency whose purpose was to combat serious and organised crime, without the limitations imposed by jurisdictional boundaries.

The continuing support for the activities of the Authority, from Commonwealth, State and Territory Governments, reflects the important role played by the Authority. There is no doubt, however, that the problems caused by serious and organised crime operating across jurisdictional boundaries, continue to pervade all levels of society. This reinforces the need for a national law enforcement agency such as the National Crime Authority.

The National Crime Authority does not deal with simple street level crime, but with the web of complex criminal activity engaged in by highly skilled and resourceful criminal syndicates.

It is therefore essential that the Authority has sufficient powers to enable it to perform its functions without being hindered or hampered by those whose very conduct the Authority is trying to investigate.

It is also essential that the Authority is able to operate in an environment that enables the greatest possible flexibility, while at the same time ensuring that the Authority remains accountable and responsive.

This Bill amends the National Crime Authority Act 1984, Ombudsman Act 1976, Privacy Act 1988 and Administrative Decisions (Judicial Review) Act 1977 to:

· implement the Government's response to the 3rd evaluation of the National Crime Authority by the Parliamentary Joint Committee on the National Crime Authority; and

· address a number of matters relating to the administration and operations of the Authority.

The Authority's task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answer a question in a hearing, it is possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest—a few hundred dollars. This is not much of a deterrent where obstructing the Authority can impede an investigation that might have led to a person being gaoled for years for a serious offence such as drug trafficking.

Accordingly, the maximum criminal penalty for failing to answer a question at a hearing will be substantially increased under the Bill, from 6 months prison and a $1,100 fine to 5 years imprisonment and a $20,000 fine. Other criminal penalties relating to non-compliance with the Authority's investigatory powers will be increased to the same level.

The Bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing, and for a prosecuting authority to use that derived evidence against the person at a later trial. In other words, a person's self-incriminatory admissions won't themselves be able to be used as evidence against that person, but will be able to be used to find other evidence that verifies those admissions or is otherwise relevant to proceedings.

However, the Bill will specifically provide that once a witness has claimed that the answer to a question might tend to incriminate him or her, then any evidence that the person gives cannot be used against the person in any later trial. The existing mechanism for a special undertaking by the DPP will not be required; this protection will be clearly set out in the legislation.

In addition, the Bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the Authority's hearing process by challenging, in the Federal Court, the Authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.

The Bill will also introduce a contempt regime to enable the Authority to deal immediately and effectively with conduct that interferes with or obstructs its hearing process. The provision will enable the Authority to apply to the Supreme Court of the State or Territory in which it is holding the hearing for the Court to deal with the conduct as if it were contempt of that Court. In addition, the Bill will provide that the contempt regime will be excluded from the operation of the Administrative Decisions (Judicial Review) Act 1977 to prevent collateral challenges to the contempt process. Such challenges can be used to delay and frustrate investigations and prosecutions.

I am well aware that the modification of the immunity provided in relation to compelled answers will cause mixed feelings on the part of some in the community. Some will be concerned about the other steps that are proposed to `strengthen the arm' of the NCA. The Government is persuaded that these measures are a necessary response to a very serious problem. The issues were fully canvassed by the Parliamentary Joint Committee in its report to which this Bill is a response. The PJC received submissions from a wide range of persons (50 in number), as well as taking oral evidence from over 60 witnesses. The position taken by this Bill is not a hasty or knee-jerk response—it is a well thought through and considered approach to a most pernicious evil, and the product of wide and lengthy consultation.

I will be encouraging the referral of the Bill to a Parliamentary Committee so that the issues can be explored once again. I encourage everyone with an interest in these issues, or with a view on the measures that are proposed by the Bill, to participate fully in that Committee process.

Other, and less contentious, measures are proposed by the Bill. The administrative matters addressed by the Bill are designed to enhance the overall operational effectiveness of the National Crime Authority.

The scope of references will be expanded to enable the Authority to investigate offences that occur after the date of the reference. The role of the Parliamentary Joint Committee on the National Crime Authority in relation to access to information held by the Authority will be clarified, as will the ability of the Authority to disseminate information to overseas agencies. In addition, the maximum term of appointment of members of the Authority will be increased from 4 to 6 years, to increase continuity in relation to matters dealt with by the Authority. The class of persons who may issue search warrants will be expanded to include magistrates and the class of person who may apply for a warrant will be expanded to include the members of the staff of the Authority.

The Bill will introduce the concept of hearing officers, who will be appointed by the Governor-General on the unanimous recommendation of the Inter-Governmental Committee of the National Crime Authority. The hearing officers will only be empowered to conduct hearings on behalf of the Authority, thereby increasing the investigatory capacity of the Authority but without expanding the category of "members".

In recognition of the referral nature of the Authority's activities, and the specialised expertise that the Authority may need from time to time in a particular location for the purpose of investigating a particular reference, the Bill will provide that the Chairperson of the Authority may employ staff otherwise than under the Public Service Act 1999.

The Bill will also clarify a number of matters such as the power of the Authority to control who may be present at hearings; the application of legal professional privilege; the use of reasonable force in the execution of a warrant; and that a prohibition on disclosure relating to the Authority's process overrides any contrary requirement under the Privacy Act 1988 for so long as the prohibition remains in force. In relation to the last issue, the Bill will insert a note into the Privacy Act 1988 to alert the reader of that Act to the requirements of the NCA Act.

Minor administrative matters include adopting the definition of "document" from the Evidence Act 1995 and including the offences of "money laundering" and "perverting the course of justice" in the definition of relevant offence, repealing ambiguous provisions, and enabling the Chairperson of the Authority to delegate certain powers.

In terms of the Authority's accountability, a fundamental reform proposed in the Bill concerns the mechanism for investigating complaints. The Bill will amend the Ombudsman Act 1976 to extend the jurisdiction of the Commonwealth Ombudsman to deal with complaints against the Authority.

The amendments will deem the Authority to be a prescribed authority for the purposes of the Ombudsman Act and this will have the effect of enabling the Commonwealth Ombudsman to deal with complaints against the Authority, members of the Authority, and members of the staff of the Authority. The amendments will also give the Commonwealth Ombudsman discretion to transfer a complaint to a more appropriate authority (for example, a State agency for a complaint against a State officer); and enable joint investigations. Both are matters within the powers of the Ombudsman in relation to complaints against other authorities or Departments. In addition the amendments will provide that the Attorney-General may issue certificates preventing the disclosure of certain information to or by the Ombudsman. The Attorney-General will only issue such a certificate when the disclosure of the information would be contrary to the public interest by reason that it would prejudice, amongst other things, the safety of a person or the effectiveness of an investigation being conducted by the Authority.

The amendments made by the Bill will result in a more effective and efficient National Crime Authority to grapple with the ever-increasing complexities of organised and serious crime. This is an important measure, prepared in consultation with States and Territories, which will enhance our capacity to address such crime at a national level.

—————

SOCIAL SECURITY LEGISLATION AMENDMENT (CONCESSION CARDS) BILL 2000

Since its election in 1996, this Government has sought to implement its commitment to a simpler and more coherent social security system that more effectively meets its objectives of adequacy, equity, incentives for self-provision, customer service and administrative and financial sustainability.

That commitment can be met in part by seeking to ensure that social security legislation is routinely reviewed to both to improve its readability and to ensure that it facilitates the implementation of current and new policies.

Last year this Parliament passed the Social Security (Administration) Act 1999 which was a major step forward in achieving these objectives. The Act substantially simplified the technical rules and provisions of the social security law.

The Social Security Legislation Amendment (Concession Cards) Bill 2000 is a further step towards meeting the Government's objectives to achieve a simpler and more coherent social security system because it represents a major simplification of the law relating to concession cards.

As a result of this Bill, all law relating to concession cards issued by the Family and Community Services portfolio will be consolidated in the social security law.

As part of this process, existing administrative rules and practices will be codified to ensure that those who currently have a concession card continue to qualify for that card on the same basis as they currently qualify. This has been done to avoid having winners or losers from the process of making transparent the law relating to the issue of concession cards.

Access to a concession card is a fundamental component of the Government's welfare safety net. Access to a concession card is a significant benefit to those who qualify. At the Commonwealth level the concession card provides access to concessional pharmaceutical benefits under the National Health Act 1953. It can also be used to access a range of other benefits provided by State, Territory, local government and many businesses.

The law currently governing concession cards issued by Centrelink on behalf of the Department of Family and Community Services is highly fragmented.

This causes confusion for social security customers and Centrelink staff who issue the cards.

Some provisions are contained in the Health Insurance Act 1973, others in the National Health Act 1953 and yet others are under the social security law. For example, the Health Insurance Act and the National Health Act contain provisions that specify who is entitled to concessional pharmaceutical benefits. However, appeal rights in relation to concessional pharmaceutical benefits for pensioner concession card and health care card holders are covered by the social security law.

The House of Representatives Standing Committee on Family and Community Affairs recognised the problem in its 1997 report: Concessions—Who benefits—Report on concession card availability and eligibility for concessions. The Committee recommended that the legislative framework be rationalised to include the bulk of concession entitlement provisions in the social security law rather than in legislation admin-istered by the then Health and Family Services portfolio.

Like the 1999 exercise, this Bill does not involve any major policy initiatives and it does not have any financial impact.

· The more significant of the minor policy initiatives implemented by the Bill relate to:

· making a person's entitlement to concessional pharmaceutical benefits dependent on the person's status as a holder of a concession card issued under the social security law;

· using the social security and family assistance law definitions of "dependant" and removing the need to rely on definitions of "dependant" in the Health Insurance Act and the National Health Act;

· using the social security law definition of "resident" rather than the National Health Act and Health Insurance Act definition. This makes the question of determining who is qualified for a card much simpler to administer and ensures that there is consistency between qualification for a social security pension or benefit and qualification for a card;

· conferring administrative review rights in relation to decisions on health care cards for persons receiving carer allowance. Such decisions are not reviewable at the moment under section 4CA of the Health Insurance Act;

· providing a power for the Minister to declare a person eligible to receive a health care card in limited circumstances; and

· utilising the machinery provisions of the social security law in relation to pensioner concession cards and health care cards in a manner consistent with current administrative practices.

This Bill demonstrates the Government's commitment to the ongoing review of the legislative basis underlying the social security system so as to achieve a simpler and more coherent system.

—————

THERAPEUTIC GOODS AMENDMENT BILL (No. 4) 2000

The amendments provided for in this Bill are necessary to allow the introduction of a redeveloped and refined system for electronically listing medicines, except those to be listed for export-only, on the Australian Register of Therapeutic Goods (the Register).

The current electronic lodgement system for listing medicines for supply in Australia was developed by the Therapeutic Goods Administration (TGA) in co-operation with the industry and provides for listable medicines to be marketed more quickly through the electronic lodgement of applications. Listable medicines are considered to be of low risk based on their ingredients and therapeutic indications/claims. Most complementary medicines (such as herbal, vitamin and mineral products) and sunscreens, and some over-the-counter medicines fall into this category. There have been concerns that the current listing system, whilst an improvement over the previous paper-based system, does not fully meet the needs of industry for streamlined market access for their listed medicines.

A new refined listing system has been developed, which seeks to assure the safety and quality of, and maintain consumer confidence in, listed medicines that may be supplied in Australia, whilst facilitating quicker market access by applicants. This is to be achieved by finding a better balance of responsibilities for industry and the TGA under a co-regulatory framework.

In the new listing system, strict standards of quality and safety will continue to apply to listed medicines and sponsors will continue to be required to hold evidence to support the claims they make in relation to these medicines. However, under the changes introduced by the Bill sponsors of listed medicines will have greater responsibilities in relation to pre-market assessment of the medicines they wish to list on the Register and the TGA will assume greater post-market monitoring responsibilities in relation to listed medicines.

The amendments in this Bill provide for a medicine to be listed in the Register following self-assessment by the applicant, provided the requirements of section 26A are met.

Under section 26A the applicant certifies that the medicine meets certain criteria for listable medicines and that the information in, or with, the application is correct. Changes made by the Bill introduce additional matters that are required to be certified in relation to the manufacture of the medicine. The changes also require the applicant to certify that evidence is held to support any claim made in relation to the medicine. These changes will increase the accountability of the applicant in relation to the listing of the medicine.

The amendments in the Bill empower the Secretary to cancel the listing of a medicine that is not eligible for listing or is an exempt good. This allows for cancellation of goods that should never have been listed. The Secretary is also empowered to cancel the listing of a medicine where there is a serious breach of the requirements related to advertising such that the presentation of the medicine is misleading to a significant extent. If an applicant fails to respond within 20 working days to a request for information, and the request was made for the purpose of determining if a medicine should have been listed, the Secretary is empowered to cancel the listing of that medicine. Post-market monitoring of listed medicines is strengthened by these changes.

New offences have been created for the making of false or misleading statements in relation to certification of matters for the listing of medicines under section 26A or where false and misleading information is provided in compliance with a request for information relating to the medicine. The electronic listing system relies heavily on information provided by the applicant and self-assessment by the applicant. There is the potential for serious public health consequences if a medicine were to be listed or remain listed on the basis of false or misleading information. The penalties are designed to discourage the provision of inaccurate information.

The new listing system has been developed by the TGA in co-operation with industry and consumer representatives and is supported by the key stakeholder groups.

Ordered that further consideration of these bills be adjourned to the first day of the 2001 autumn sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.