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Tuesday, 19 November 2002
Page: 6747


Senator ELLISON (Minister for Justice and Customs) (4:22 PM) —by leave—I table a supplementary explanatory memorandum to the bill and I move government amendments (1) to (4) on sheet EJ319:

(1) Schedule 1, item 35, page 13 (after line 25), at the end of section 7C, add:

Informing the Inter-Governmental Committee

(5) The Chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter-Governmental Committee.

When determination takes effect

(6) A determination under subsection (2) or (3) has effect immediately after it is made.

(2) Schedule 1, page 16 (after line 25), after item 36, insert:

36A At the end of subsection 8(5)

Add “There must be a minimum of 2 meetings each calendar year.”.

(3) Schedule 1, page 16, after proposed item 36A, insert:

36B Subsection 8(7)

Repeal the subsection, substitute:

(7) A resolution:

(a) which, without being considered at a meeting of the Committee, is referred to all members of the Committee; and

(b) of which:

(i) if subparagraph (ii) does not apply—a majority of those members, or if a majority including a particular member or particular members is required for the resolution to have effect, a majority including that member or those members, indicate by telephone or other mode of communication to the member of the Committee representing the Commonwealth that they are in favour; or

(ii) if the resolution is that the Committee make a request under subsection 9(2) or that the Committee revoke a determination made under subsection 7C(2) or (3)— the member of the Committee representing the Commonwealth is in favour and at least 5 other members indicate by telephone or other mode of communication to the member of the Committee representing the Commonwealth that they are in favour;

is as valid and effectual as if it had been passed at a meeting of the Committee duly convened and held.

(4) Schedule 1, item 38, page 17 (after line 11), at the end of section 9, add:

Request for more information about special determination

(2) Within the period of 30 days beginning on the day the Committee is given a copy of a determination (a special determination) under subsection 7C(2) or (3), the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, request the Chair of the Board to give further information to the Committee in relation to the determination.

(3) Subject to subsection (4), the Chair of the Board must comply with the request.

(4) If the Chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Chair must not give the Committee the information.

(5) If the Chair of the Board does not give the Committee information on the ground that the Chair considers that disclosure of the informationto the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Committee may refer the request to the Minister.

(6) If the Committee refers the request to the Minister, the Minister:

(a) must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and

(b) must provide copies of that determination to the Chair of the Board and the Committee; and

(c) must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination.

Revoking the special determination

(7) Within the period of 30 days beginning on the day the Committee makes a request under subsection (2) in relation to a special determination, the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, revoke the determination.

(8) The Committee must notify the Chair of the Board and the CEO of the revocation. The revocation takes effect when the CEO is so notified.

Note: One of the effects of the revocation is that the coercive powers in Division 2 of Part II are no longer able to be exercised in relation to the ACC operation/investigation concerned.

(9) To avoid doubt, the revoking of the determination does not affect the validity of any act done in connection with the ACC operation/investigation concerned before the CEO is so notified.

Committee under no duty to consider whether to exercise powers

(10) The Committee does not have a duty to consider whether to exercise the power under subsection (2) or (7) in respect of any special determination, whether the Committee is requested to do so by any person, or in any other circumstances.

I will add to Senator Abetz's comments by thanking the opposition for its cooperation in this matter. I thank especially the parliamentary Joint Committee on the National Crime Authority and its chairman, the member for Cook, Bruce Baird, and also the senators in this chamber who have contributed to the debate.

This package of proposed amendments will introduce a further level of ministerial oversight in relation to the functions of the board by providing the IGC with the power to revoke a decision of the board to authorise the use of coercive powers. During the course of the parliamentary joint committee's hearings, this issue came up and was discussed. The government was minded to reject the additional comments made by opposition members of that committee but, during the course of discussions with the opposition, a number of issues were identified and I believe that this package addresses those concerns.

Government amendment (1) inserts a provision requiring the chair of the board to provide a copy of a determination that an Australian Crime Commission operation or investigation is a special ACC operation or investigation to the IGC within three days of having made that determination. This amendment also provides that a determination made by the board takes effect immediately it is made. You have here a situation in which an operation or investigation can be determined to be a special operation or investigation, and the significance of that is that coercive powers then attach to that determination. It is one of the unique aspects of the ACC that you can have coercive powers involved; that is, a person is required, under the provisions of those coercive powers, to answer questions if brought in. That is unknown to Australian law and Australian law enforcement generally, because normally a person has a right to silence.

Now, in relation to the exercise of these powers, we have been very careful to distance them from those police commissioners who sit on the board because we believe that the police should not have those powers, nor do the police want those powers. So this is part of the oversight that I mentioned, and you cannot have that sort of oversight by the intergovernmental committee, which comprises government ministers from the territory, state and Commonwealth level, without having a communication of the determination to that board, and that communication should be made within three days. That ensures that it is not left hanging around. As well as that, the decision by the board should also not be hindered by this mechanism of oversight; that is, the decision by the board to investigate a matter of public importance that is of national significance in the criminal sense should stand. The investigation should then ensue but of course whilst that is being done the IGC, if it has any concerns, can then look at the determination that has been made.

Amendment (2) amends section 8(5), which provides that the meetings of the IGC shall be held at such times and places as are from time to time agreed by the members of the IGC, to insert an additional requirement that there must be at least two meetings of the IGC in each calendar year. That is of course something which was mentioned, that we should ensure that the IGC, to maintain proper scrutiny, should meet a certain number of times each year. That is addressed by government amendment (2).

Government amendment (3) repeals and substitutes a new section 8(7), which deals with out of session resolutions of the IGC. The effect will be that the voting in relation to resolutions that do not relate to revoking determinations will remain by a majority vote but that any resolution that relates to revoking a determination must be agreed to by the members representing the Commonwealth and at least five other IGC members. That is also another important part of the package.

Amendment (4) inserts provisions enabling the IGC to revoke a determination that an ACC operation or investigation is a special operation or investigation. This is the nub of the scrutiny and of the transparency, because this means that the board, which is made up of law enforcement officers, can determine that the coercive powers should be used, albeit that the board members will not have personal power over the exercise of those powers. They make the decision that the powers should be used but there will be some mechanism of oversight by the intergovernmental committee, which is made up of ministers who are of course accountable to their parliaments. We have to put in place a mechanism for that to be workable.

This power of revocation is exercisable if, within 30 days of having received the determination from the board, the member of the IGC representing the Commonwealth—that is the Minister for Justice and Customs at present—and at least five other ministers decide that they need more information in relation to the determination and resolve to request the chair of the board to provide that information to them. The chair of the board then has to comply with that request and provide information, but that information must not prejudice the safety or reputation of persons or the operations of law enforcement agencies. The IGC may, within 30 days of having requested that additional information by a resolution which is agreed to by the Commonwealth's representative and five other members, revoke the determination. So within 30 days of receiving the determination you have the ability to call upon the chairman of the ACC board to give further details as to why this power was needed, why this determination was made and if upon hearing the chairman the IGC is not so satisfied it can revoke that determination within 30 days. That is very important because it gives that ministerial oversight to the operation of this very important national law enforcement body which has the ability to exercise coercive powers.

Of course, you have to give protection to law enforcement officers who are going about their duties and who have embarked upon an investigation. Therefore, included in this package of amendments is that the revocation of a determination would mean that the ACC operation or investigation, while no longer a special ACC operation or investigation, would be still valid up to that point— that is, those officers are indemnified from any action against the fact of revocation. You do not want law enforcement officers thinking, `I'm too scared to act in this matter, because the ministers might overturn it.' You do not want some law enforcement official to be reticent because of some potential revocation. So, while a determination remains on foot, law enforcement goes about its business and investigates. If a determination is revoked, the coercive powers that I have mentioned fall away but the revocation does not invalidate any past acts up to that point, and I think that is very important.

One point worthy of note is that the amendments also provide that the IGC is not required to consider whether to exercise the powers either to ask for more information or to revoke a determination—that is, the IGC does not have a duty to reconsider and make a decision in relation to each and every determination. Importantly, this operates only where the IGC is of a mind that there has been an overstepping of the mark by law enforcement. Remember that, from a law enforcement point of view, the safeguards here are that the politicians have constraints placed on them as to their decision. Several politicians could interfere with law enforcement by revoking a determination, but you would have to have five ministers from the states and territories who are on that government committee plus the Commonwealth representative, who is normally the Minister for Justice and Customs, so one would think that would make it a requirement that would come about only in the most exceptional circumstances. Similarly, in the case of the board when it is determining whether or not there should be a special investigation or operation, it too has a requirement that there be a two-thirds majority of the board in relation to that determination. You just cannot say willy-nilly, `We're going to use coercive powers.'

In summary, this package of amendments involves heightened scrutiny of the exercise of law enforcement powers without presenting undue hindrance to the pursuit of organised criminals in Australia. This has come about as a result of discussions since the parliamentary joint committee report, and Senator Abetz in his speech outlined how we have taken on board the vast majority of recommendations from the parliamentary joint committee. We did not take on board the suggestions of the opposition members of the PJC in relation to ratification; that was a more onerous requirement which would have had the IGC playing a part in every determination that dealt with coercive powers. This allows the IGC to be involved if it sees a need. If there is no need to be involved, there is no need for the IGC to then become an impediment to the swift operation of law enforcement.

We have here a bill that is perhaps one of the most significant in recent times in relation to the pursuit of transnational and organised crime in Australia. The NCA, which was set up in the early eighties, was perhaps the last significant step we as a nation took in fighting organised crime. This bill brings the fight against organised crime into modern times. It brings together a more streamlined approach. It brings together security and law enforcement for the first time ever: we will have ASIO and the head of Customs sitting on the board with state police commissioners. This is what is required if Australia as a nation—the states, the territories and the Commonwealth government—is to fight organised and transnational crime in this country.

This bill gets rid of the references system, which was plagued with red tape and a process that was convoluted. Law enforcement often has to act quickly. We saw that in the murder of Don Hancock in Western Australia last year. We saw how coercive powers needed to come into play quickly in that instance in relation to the pursuit of the killers, who law enforcement believed were linked to organised motorcycle gangs in Western Australia. What we did not need was a complicated reference system that had to be voted upon by ministers around the country before law enforcement could use these important powers. We have here safeguards and balances that I think are appropriate and that provide the scrutiny that I think is required by the Australian community.