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Monday, 11 November 2002
Page: 5932

Senator FERRIS (South Australia) (4.17 p.m.)—On behalf of the Parliamentary Joint Committee on the National Crime Authority, I present its report entitled Australian Crime Commission Establishment Bill 2002, together with the Hansard record, the minutes of proceedings and submissions received by the committee. I seek leave to move a motion in relation to the report.

Leave granted.

Senator FERRIS—I move:

That the Senate take note of the report.

I seek leave to have my tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows

Early this year, the Government undertook a review of the National Crime Authority, in fulfilment of an undertaking made before the last election. The review was followed by a meeting of State and Territory Premiers and Chief Ministers to discuss security and related issues. At that meeting, State and Territory leaders agreed to replace the National Crime Authority with the Australian Crime Commission. On 9 August the governance proposals were endorsed by the States and Territories, and the bill was introduced on 26 September by the Attorney General.

On the same day, the Bill was referred to the Parliamentary Joint Committee on the National Crime Authority for report by 6 November. The report was submitted on that date.

Mr President, in this relatively short reporting period, the PJC has received 18 submissions and heard evidence in Sydney, Melbourne and Canberra from a wide range of individuals and representative bodies. The material the PJC received has founded its recommendations.

The replacement for the National Crime Authority is a link in the chain of protection for all Australians from the consequences of organised criminal activity. On a national level this embraces security, the flow of money to and from this country, and the illegal importation of items such as drugs and guns. Mindful of this, the PJC has made a number of recommendations it believes will give the new body the environment it needs to operate effectively and with accountability. The recommendations are designed to strengthen the new body and improve the environment for the use of the coercive powers.

Mr President, these powers are not available to police in ordinary law enforcement environments: they are granted to Royal Commissions and are a potent weapon which can affect individuals significantly. In the case of the NCA their use was determined by an intergovernmental committee. This process was considered time consuming and cumbersome; some considered it inhibited the work of the NCA.

For the Australian Crime Commission, these powers are proposed to be extended to intelligence operations as well as investigations: this represents a fundamental shift in the use of such powers. The PJC noted a number of submissions which expressed concern about maintaining the balance between intelligence gathering and crime investigation, and the need to preserve certain civil rights.

There was unease from some quarters about the invocation of a broadly defined “public interest” which could extend the use of coercive powers— particularly in the area of intelligence gathering— beyond what is justified by special circumstances. The PJC was concerned to ensure that there are safeguards in both the authorisation of the powers and in their use.

The Bill proposes that a 13 member Board consisting of State, Territory and Federal Police Commissioners together with the Secretary of the Attorney General's Department, the CEO of the Australian Customs Service, the Chairperson of the Australian Securities and Investment Commission and the Director-General of Security, authorise an operation as a special operation or investigation which would bring the coercive powers into play.

The PJC considered at length a number of alternative proposals. Included was the suggestion that any authorisation by the Board of a special operation should be ratified by the Inter-Governmental Committee. (The IGC is made up of State and Commonwealth Ministers). For urgent special operations, the PJC considered that the operation could commence pending the ratification by the Board.

Alternatively, given the agreement between the Commonwealth, States and Territories the PJC considered the possibility of further Ministerial negotiations over the process.

Ultimately the PJC agreed that the major concern lay with the Board's power to create committees and delegate functions to them. The PJC took the view that a committee authorising the use of coercive powers would not provide sufficient safeguard and therefore recommended that the Bill be amended. Accordingly, the PJC has recommended that any decision by a committee of the Board to authorise the use of coercive powers for an investigation or a special operation should be ratified by the full Board.

Having addressed the issue of authorisation, the PJC considered at length the process for the exercise of these powers. The position of examiner has been established to conduct ACC hearings. Under the NCA Act, these hearings were undertaken by Members of the NCA.

In conducting these hearings the examiner can— among other things—require the production of documents and the provision of evidence with significant penalties for failure to comply.

The PJC noted that there was no provision for the examiner to provide reasons for his or her determinations regarding the use of these powers. The PJC is anxious to ensure that their use is limited to those situations in which doubt as to their appropriateness has been removed.

Accordingly, the PJC has recommended that the Bill be amended so that examiners satisfy themselves as to the reasonableness and appropriateness of using the coercive powers. In addition, the Report recommends that the Examiner record in writing, the grounds for forming his or view.

Mr President, the PJC noted that there was no explicit requirement for the Examiners to receive a full briefing on investigations prior to conducting hearings. After deliberating at length, the PJC decided not to make such a recommendation, but it does wish to emphasise that full and accurate briefings are basic to the role of the examiner in his or her exercise of the coercive powers.

Mr President, related to the use of coercive powers is the broader issue of organisational accountability and performance. Many witnesses referred to the current oversighting role the PJC has in relation to the NCA. This statutory duty will continue in relation to the ACC.

The Bill provides only technical amendments to the provisions of the NCA Act relating to the disclosure of information concerning an investigation. However, the PJC believes that access to operational information is essential for effective oversight of the ACC. It is for this reason, that the Report includes a recommendation which obliges the ACC to provide information when the PJC asks for it, provided of course, that current enquiries are not prejudiced.

Mr President, the Report also canvasses a number of other aspects of the Bill, including the composition of the Board. The PJC took the view that the ACC would be enhanced by representation from the Australian Transaction and Reports Analysis Centre.

Part of Austrac's charter is to create a financial environment hostile to money laundering, major crime and tax evasion. Given that financial matters are of immense significance the drug trade, and illegal importing, the PJC considers the inclusion of Austrac on the Board would enhance the ACC's capacity for long term success.

The PJC `s statutory role of monitoring and evaluating the organisation will continue under the new legislation. However, the PJC is also concerned to ensure that there is a statutory review of the activities of the new organisation within a defined period. It is for this reason that the PJC has recommended that such a review take place after three years have elapsed from the date of commencement of the Act.

Mr President, the PJC was pleased that so many people gave their time to appear at hearings and provide thoughtful and detailed submissions, particularly in view of the short timetable. The amendments recommended in this report have evolved from the PJC's discussions of the evidence provided to it. The PJC considers that those amendments will provide a more accountable body which will effectively discharge its role in the detection and control of organised crime in this country.

Question agreed to.