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Tuesday, 19 November 2002
Page: 6680


Senator GREIG (9:56 AM) —I rise to speak on the Australian Crime Commission Establishment Bill 2002 and to express the strong concerns and reservations that we, the Australian Democrats, have about this legislation. The bill, in part, brings into effect the government's 2001 election platform relating to terrorism and transnational crime. In launching that platform, the Prime Minister flagged an intention to address inefficiencies associated with the operations of the National Crime Authority, the NCA. He described the referral process for NCA investigations as `a complex cooperative scheme which can be very time consuming in commencing investigations'.

A meeting between the Prime Minister, premiers and chief ministers in April this year resulted in a 26-point plan to address terrorism and transnational crime. As part of that plan, it was agreed that the NCA would be replaced by the Australian Crime Commission, the ACC, which would also incorporate the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments. This bill aims to bring those changes into effect. It also invests the ACC with new intelligence related functions and powers above and beyond those currently undertaken by the ABCI and the OSCA.

The Australian Democrats acknowledge the importance of intelligence resources in effectively combating transnational and transborder crime. However, we are not yet convinced that the regime proposed in this bill, in its current form, represents an appropriate model for the collection of criminal intelligence. One of the primary justifications advanced by the government for the introduction of this legislation is that it establishes a more efficient and effective regime to deal with transnational and transborder criminal activity than that which currently exists under the National Crime Authority Act. The Australian Democrats accept that efficient procedures in the context of criminal investigations and intelligence operations are important and necessary and that, in many cases, the ability of the ACC to act quickly will determine the effectiveness of a particular investigation or operation. However, we do not believe that efficiency should be pursued at any cost. In particular, fundamental accountability mechanisms must not be sacrificed in favour of greater efficiency.

With this in mind, the Democrats have a number of serious concerns in relation to the bill in its original form. We note the substantial improvements advocated and made to the bill during its passage through the House of Representatives and, in particular, the government's adoption of 13 of the 15 recommendations made by the Parliamentary Joint Committee on the National Crime Authority. The most significant of the changes under the new regime relate to the governance and oversight of the ACC. At present, the intergovernmental committee has primary responsibility for overseeing the exercise of the NCA's functions and powers. Moreover, it is the IGC that determines which investigations should be treated as special investigations in which the NCA can exercise its coercive powers.

Under the new regime, the ACC board is responsible for the primary oversight of the ACC. The ACC board consists of the Australian Federal Police Commissioner, who acts as chair, the Secretary of the Attorney-General's Department, the CEO of Customs, the Chairman of the Australian Securities and Investments Commission, the Director-General of ASIO, the state and territory police commissioners and the CEO of the ACC. The intergovernmental committee is retained under the new regime, but its functions and powers are reduced dramatically and a number of them are transferred to the ACC board. Perhaps most significantly, the power to authorise the use of coercive powers is transferred to the ACC board. In other words, the bill effectively transfers this power from a ministerial group to a board consisting of police commissioners and Commonwealth agency heads. This has significant implications for the accountability of the ACC.

It has been a fundamental concern of the Australian Democrats in considering this bill to ensure that the substantial coercive powers of the ACC are subject to proper external scrutiny and accountability mechanisms. We note that the IGC comprises democratically elected members of parliament who, in their capacity as ministers, are accountable to their respective parliaments. For this reason we believe that the IGC is the more appropriate body to provide oversight to the ACC. Moreover, we concur with a number of submissions to the joint parliamentary committee which raised concerns about the appropriateness of vesting these powers in a board dominated by police representatives. For example, the Law Council of Australia noted:

The idea of a police force having a power to compel a person to attend a `hearing' and be compelled to provide answers is simply unheard of in Australia.

It suggested:

The potential for police interest to dominate key decisions may undermine public and governmental confidence in the ACC.

Mr Denis Lenihan, a former CEO of the NCA, noted in his submission that, in determining whether an investigation or operation is a special investigation or operation, the ACC board must consider whether ordinary police methods of investigation into the matter are likely to be effective. He asked:

Is it not paradoxical—or even suspect—that persons from those very agencies whose methods have been ineffective will now be in the position of authorising the exercise of powers designed to remedy those defects?

Ideally, the Democrats—like the Law Council—would like to see the power to authorise special investigations and operations retained by the IGC.

The Attorney-General's Department has sought to justify the transfer of this power to the ACC board on the basis that the current reference process is `cumbersome and unwieldy'. However, the committee received conflicting evidence regarding the alleged inefficiencies of the current process and it is unclear how a nine-member ministerial group could be so much more inefficient in the exercise of this power than a 13-member board of police commissioners and agency heads.

I note that the bill in its original form empowered the board to authorise a committee, consisting of at least two of its Commonwealth members, to determine whether an investigation or operation was a special investigation or operation. Whilst this provision may have facilitated more efficient decision making, the Democrats strongly opposed it on the basis that it resulted in an inappropriate concentration of power. In any event, that provision was omitted during the bill's passage through the House of Representatives. With the omission of this provision, it is unclear just how the new regime established by this bill will be substantially more efficient than the existing regime. As Mr Frank Costigan QC, in his submission to the parliamentary joint committee, noted:

There has not yet been any explanation why it is necessary to abolish the NCA rather than improve it, if improvement is necessary.

One of the recommendations made by the three Labor members in the parliamentary joint committee's report was that the IGC should be required to approve any use of coercive powers by the ACC, except in circumstances of urgency where the ACC board could make such an authorisation. An authorisation made by the board in these circumstances would then lapse after 45 days unless ratified by the IGC.

We Democrats held the view that this recommendation represented an appropriate balance between the need to ensure the accountability of the ACC in the exercise of its coercive powers and the government's claim that the current procedures are inefficient. We understand that the government has indicated that it is not prepared to adopt that particular recommendation, but instead is proposing amendments which will invest the IGC with the power to veto determinations made by the board regarding special investigations and operations. Whilst this would represent a substantial improvement to the original bill, we Democrats have yet to be convinced that that approach will achieve the best and most appropriate balance. However, having not yet seen the government's proposed amendments we reserve our position on them for the time being.

The Democrats also have concerns relating to the limitation on the ACC board's obligation to provide information to the Commonwealth minister. Under the present regime, the NCA must keep the Commonwealth minister informed about the general conduct of its operations and provide information at the minister's request about special investigations. This obligation is retained by the chair of the ACC board under the new regime. However, it is subject to the limitation that the chair must not provide any information to the minister if the chair considers that disclosure of the information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies.

We Democrats accept that such a limitation may be appropriate in relation to the disclosure of information to the IGC. However, it is unusual for a limitation of this nature to apply to the minister responsible for the administration of the act. It is also unclear why the test is whether the disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, since the information is to be disclosed to the minister and not to the public. Surely a different standard would apply to the minister than would apply to members of the public.

Finally, the limitation on the provision of information to the minister sits uncomfortably with the provisions enabling the PJC to refer to the minister requests for information that the ACC chair has denied it on the basis that the information is potentially prejudicial. Clearly, the ability of the minister to look into such matters may be impaired by the fact that he or she may also be denied access to the information in question. We Democrats are interested in exploring amendments to address that concern. In essence, our principal concern with the legislation is that it retains a number of areas that we feel might be better addressed or not embraced in the first instance.

In the broader Australian community there are increasing and general concerns about police powers, particularly in the antiterror climate that we experience, and increasing concerns about what they mean for civil liberties, which was reflected in part by the recent announcement by the New South Wales Premier Bob Carr of state based home security and antiterror laws in his state. That brings home more than ever the fundamental need for parliamentary oversight, both for accountability and for restraint. There were some concerns expressed during the committee process and public lobbying in relation to this legislation that perhaps some of the powers that were originally proposed for the ASIO legislation, which have since been removed or watered down, may be attempted to be laundered into the Australian community by way of the back door via this bill. I think that emphasises the very strong need for parliamentary oversight and scrutiny.

The bill contains a statutory limitation on the ability to challenge a determination of the board relating to a special investigation— except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a state—or any act or thing done by the ACC, because a determination must not be challenged, reviewed, quashed or called into question in any court on the ground that the determination was not lawfully made. So there are also changes to the obligation of the ACC to provide certain information to various bodies or persons. For example, the NCA is currently obliged to provide information to the Commonwealth minister on request, as I said, regarding a special investigation reference made by the minister; yet, under the new regime, the chair of the board must provide the information regarding the ACC's activities to the minister on request, except if the disclosure of that information could prejudice safety.

That remains one of the key areas of concern that we Democrats have. But in a broader sense, while we understand the need for reformation of the NCA—we understand the arguments behind it—we accept the arguments in favour of amalgamating the various agencies that deal with transnational and transborder crime into one, more effective, unit. Fundamentally for us, the overriding concerns are and always will be civil liberties, human rights and the question of accountability. We can and will explore those areas further in the committee debate, particularly in relation to proposed and circulated amendments.