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Tuesday, 19 November 2002
Page: 6675


Senator DENMAN (9:31 AM) —I am continuing my speech in the second reading debate on the Australian Crime Commission Establishment Bill 2002. A clear single rationale or a clear reason why the National Crime Authority, an agency that has always been acknowledged by both governments for its good work, has suddenly become redundant is yet to emerge in public debate. Speculative reasons have included the National Crime Authority's support for a heroin trial conflicting with official government policy and that the means of referring matters to the National Crime Authority are unnecessarily complex. The Labor Party supports the latter reason.

A review of the National Crime Authority in December last year, conducted by Mr Mick Palmer, the former Australian Federal Police Commissioner, and Mr Anthony Blunn, the former Secretary of the Attorney-General's Department, was reported to cabinet. That report has never been made public, although it seems likely that the report formed the thrust for the summit. It is the government's intention to have the Australian Crime Commission in operation before 1 January 2003. The Labor Party has cooperated with the government over this short time frame. However, I will make the comment that it has been a particularly short time frame for examining legislation of this importance. The Labor Party recognises the importance of issues of law, justice and national security. These are issues that should have bipartisan support and I think this has been evident in the way we have tried to work with the government to improve the legislation.

The Parliamentary Joint Committee on the National Crime Authority, of which I am a member, began its formal inquiry into this legislation on 26 September 2002. The committee reported, out of session, on 6 November 2002. This gave witnesses—at best—only two weeks to prepare submissions and even less notice of public hearings. In the light of the excellent evidence the committee received, I would like to thank witnesses for accommodating the short time frame. I would also like to thank the committee secretariat for their hard work and flexibility in meeting the reporting date.

In its report, the parliamentary joint committee made 15 unanimous recommendations. An additional three recommendations were made by certain members of the committee: the Hon. Duncan Kerr, the member for Denison; Mr Robert Sercombe, the member for Maribyrnong, and me. The recommendations are aimed at improving the current model on offer. They will ensure that the Australian Crime Commission has a better level of transparency and accountability. I would like to draw your attention to the report where the parliamentary joint committee comments strongly on this issue:

... in a western democracy one of the central elements that should be evident in an organisation such as the NCA or the new ACC are mechanisms to ensure transparency and accountability. This is not to suggest that the operations and intelligence gathering should be compromised but that appropriate checks and balances exist.

The government clearly recognises the value of the recommendations made by the parliamentary joint committee and has agreed to most of the recommendations. Labor welcomes the government's acceptance of the recommendations and is confident that they will result in a better Australian Crime Commission.

As a member of the parliamentary joint committee, it was very clear to me that there were many sources of concern over the proposed Australian Crime Commission. It is difficult to ignore the comments in the submissions and those made at public hearings. One element of this legislation has attracted extensive criticism from individuals and organisations with considerable law enforcement experience. One of the witnesses, Mr John Broome, who is a former chair of the NCA, when commenting on the management structure and accountability, repeated the description that `what may have set out to be designed as a racehorse has become a five-legged camel'. I think the committee recommendations do give us a more effective model, one that is closer to a racing horse.

There were two areas in the legislation that attracted the most attention: the governance arrangements and the use of coercive powers in special investigations. I want to spend my time today concentrating on these two issues. From the outset, I want to make the comment that these weaknesses have been picked up largely in the committee recommendations. Firstly, I would like to address the governance arrangements. It is proposed that the Australian Crime Commission management structure will include (1) a chief executive officer; (2) a 13 voting member board, of which the majority will be police commissioners; and (3) that the intergovernmental committee and the parliamentary joint committee will have an oversight role. This is unlike the current National Crime Authority, where there is a chair and at least two other members.

It was initially proposed that the chief executive officer would implement and resource the decisions of the board. For example, the board would select a person to head a task force and the CEO would then implement that decision. Yet, ultimately, it would be the chief executive officer who would be considered answerable for the success or otherwise of those decisions. In strengthening the ability for the chief executive officer to be accountable for the overall management of the ACC, amongst its recommendations the committee stated that it should be the chief executive officer who makes the decision about who heads up the task force, on the advice of the board. This makes the line of accountability more logical, as it is still the chief executive officer who is answerable for the success or otherwise, but at least it is the chief executive officer who has made the appointment.

In the Attorney-General's second reading speech, he stated that the new position of the chief executive officer would require `an individual with a strong law enforcement background'. Currently, the chair of the NCA must be a judge, a former judge or a lawyer of at least five years standing. In the proposed model, the chief executive officer may be suspended or terminated by the Minister for Justice and Customs for unsatisfactory performance. The parliamentary Joint Committee on the National Crime Authority considered:

It is paramount that the new body is free from any possible perception that political interference may either be possible or could take place.

However, the parliamentary Joint Committee on the National Crime Authority also acknowledged that nonperformance should not be ignored. In addressing this dilemma, it is recommended that the chief executive officer can only be suspended on the initiative of the minister until a meeting of the full board can take place to consider the matter, and that the chief executive officer can only be removed for cause. There must also be a resolution of the full board passed by a two-thirds majority.

The other area of concern was the coercive powers. The current NCA can use coercive powers only in very defined circumstances, with accountability lying with the intergovernmental committee made up of state and territory ministers. Under the proposed legislation, the Australian Crime Commission will have powers, when conducting special investigations, similar to those of a standing royal commission—powers that are not given to police forces. It is proposed that the decision to authorise these powers in special investigations will rest with the board or with a committee of at least two board members established at the agreement of the board.

The parliamentary joint committee received concerns that, because the majority of board members were going to be police commissioners, perhaps there would not be a measured and unbiased consideration of the use of the coercive powers. The effect would be that powers not generally available to police would be placed in the hands of police. For example, the Australian Bar Association and the Victorian Bar Association commented:

Firstly, we submit that there has been a significant dilution of control over the exercise of the coercive powers that are available to be used in the course of a criminal investigation. Secondly, there has been most recently a significant increase in the potency of the coercive powers granted to the NCA and now taken over by the Australian Crime Commission. To put it in a nutshell, the combination of those two issues means that we now have a police force with coercive powers.

This feature of the new model represents a major change in the arrangements for coercive powers. Interestingly, even the police commissioner, Mr Mick Keelty, prior to this legislation seeing the light of day, commented:

It is inappropriate for any police organisation to have the special powers conferred upon the NCA.

In response to this concern, and as a safety precaution, the parliamentary joint committee recommended that any decision by a committee of the board to authorise an operation or an investigation as a `special operation investigation' requires ratification by the full board. Three additional recommendations were made by certain members of the committee—again, Mr Duncan Kerr, Mr Bob Sercombe and me—which attempted to put in some safety checks to reduce the opportunity for the coercive powers to be abused.

The Labor Party does not dispute that, in our current climate, Australia should evaluate its ability to respond to terrorism and transnational crime. Whether the Australian Crime Commission can be as good or better than the current National Crime Authority is something that will be seen in the fullness of time. It is important to remember that the National Crime Authority was a competent agency. However, I am confident that the model for the Australian Crime Commission, incorporating those recommendations agreed to by the government, is an improved model. Importantly, there are a few more checks and balances, and that is a very good thing in a law enforcement agency that is going to be given coercive powers.