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JOINT COMMITTEE ON THE AUSTRALIAN CRIME COMMISSION
06/11/2008
Legislative arrangements to outlaw serious and organised crime groups

CHAIR —I welcome the witnesses from the Law Council of Australia. I now invite you to make a short opening statement, at the conclusion of which members of the committee will ask you some questions.

Mr Ray —The Law Council of Australia is very grateful to have this opportunity to talk to you. We at the Law Council are very concerned at legislation such as may be proposed here reflecting the South Australian and the New South Wales legislation. We express concern on each of two bases, fundamentally. Firstly, there is no evidence to say that the existing laws are inadequate. It is clear that there are a range of laws that refer to conspiracy and substantive offences and investigative powers that are adequate. Secondly, there is no evidence to suggest that the changes proposed will in fact introduce advantages for the control, regulation, detection and punishment of organised crime. That is clearly so, and there are some issues that have some parallels in the introduction of the terrorism legislation. It is interesting to note that even, for example, to my knowledge, the Victoria Police say, ‘Look, there are some potential downsides to this legislation because you can drive some of these groups underground and you can make it more difficult to survey, to monitor, to collate information and to prosecute.’

We are very concerned about the introduction of laws that further erode fundamental principles that have been established—for very good reason—for up to over 200 years and that recognise the rights of individuals. The notion of prosecuting people for associations rather than substantive offences is really quite abhorrent. If somebody is involved, is sufficiently proximate and commits an offence, even one of an attempt or one of a conspiracy nature, then the existing laws are there to deal with them. It is very clear that not only do some of these laws have the potential to be structurally unfair and restrict relationships—they introduce laws that are really Big Brother laws, dictating who you can talk to and where you should be—but they also create other issues of accidental capture of conduct that is clearly not criminal. The accidental capture of such conduct is a reflection of legislation that is emotively introduced, such as the terrorism legislation, and has within it changes that are based on fear rather than the logical application of law.

So we would say very clearly that the substantive offences that are referred to in the Commonwealth Criminal Code Act 1995 and the investigative powers that clearly exist are adequate. Secondly, there are real problems with introducing the notion of guilt by association. Thirdly, the legislation that has been introduced has, we would submit, some real issues that demonstrate that the law is not necessary. It is interesting to note, for example, in New South Wales, that the legislation as introduced, to my knowledge, has led to some 168 charges. Of those charges, only half of them have led to convictions—that is, of these sorts of offences under the New South Wales legislation. On no occasion has there been a conviction only of those specific breaches. They have always been hand in glove with other substantive offences. So we should say to ourselves, ‘What’s wrong with charging the substantive offence?’ If there is a specific intent that is more heinous in nature, that becomes an aggravating factor for sentencing and is appropriately dealt with within the criminal justice system on that basis. You already have our submissions. I raise those issues as introductory, and I am now very happy to deal with any issues that you would care to raise with me.

CHAIR —Thank you. Would your colleagues like to make any comment?

Ms Budavari —No, not at this stage, thank you.

Mr WOOD —Thank you very much, Mr Ray, for attending today with your colleagues. We have heard today evidence that serious and organised crime is reaping $10 billion each year from the Australian economy, so you can conclude from that that the existing laws or policing techniques are not working. We have heard this right across the country from various law enforcement agencies. How do you respond to that, and what solutions do you see?

Mr Ray —Immediately, I do not think that is the only inference that can be drawn. I have recently given a paper on money laundering in Kuala Lumpur at the LawAsia Conference, and I have done so in Amsterdam and other places this year—and of course the Financial Action Task Force has produced a number of guidelines to be introduced by each country. The fact of the existence of organised crime and the fact of the existence of the transfer of moneys does not automatically mean that the existing laws are not working. It is also a question (a) of the law and (b) of its implementation, and investigative powers, of course, are a relevant part of that.

What we have been doing in the climate since 9-11 is constantly balancing the proven need for change against the fear of not changing because we are facing a new problem. For example, with the introduction of the anti-money-laundering laws, based on significant black market money transfers, we have asked the government for topologies of proof to demonstrate the unwitting use of lawyers in that role. The answer is that the government, the Financial Action Task Force and the regulators in England, Canada, America and Europe are not able to point to the conduct that in fact would be revealed through this legislation. The interesting thing for you as people who are monitoring the potential introduction of these laws is to say (a) apart from apocryphal references and the reality that there are money transfers and that there is of course a degree of organised crime—and that is a reality—will these laws introduce effective change that the current laws will not effect and (b) in doing so will they abrogate fundamental principles of fairness in the community? To my knowledge, the mere reference that you raise is not a reference that says to me the existing laws do not work. In the South Australian circumstance, has there been a prosecution with the group declaration of an association of people? I do not believe there has been. If the law is in existence and it has not been utilised, that is in effect a comment on whether we need it. It is a law that introduces an extraordinary liability based on association, not conduct—a concept previously unknown to the law.

Mr WOOD —You mentioned fairness before, and that is a concern of a lot of Australians. We discovered that especially when we went over to South Australia, and I know Western Australia is the same. We have outlaw motorcycle gangs and obviously they have become a focus. They approach business people with their colours on and use branding to intimidate and to reinforce what they are doing. The major problem was getting witnesses who were prepared to eventually put their hand up in court, because of the intimidation factor. How do we get over stopping that sort of intimidation? We want to hear solutions. Whether it is the police, the judiciary or whoever, people are reluctant to say: ‘This is what we believe. We recommend this sort of action for the committee to actually target serious and organised crime.’

Mr Ray —In my view, it is a reverse onus position. That is, those who want this legislation have to justify it. It is not up to the broader community or even the Law Council to say, ‘This is why you shouldn’t do it.’ What you are doing by introducing this is eroding fundamental principles of criminal liability that have been created over 200 years. That is the first point. I will deal with why they should not be introduced in a moment, but frankly it is not up to us to say, ‘This is why you shouldn’t do it.’ It should be up to those who say, ‘We must have this change because we prove to you on empirical evidence that it’s necessary.’ That is the first point.

You talk about the power and influence of some of these motorcycle gangs. I am familiar with them because many years ago I prosecuted the Hells Angels for conspiring and actually manufacturing amphetamines in Victoria. It was a very significant trial and ultimately involved one of the senior members of the Hells Angels, who had gone off to the Oaklands chapter in America to learn how to cook amphetamines so he could come back to Australia and participate in the illicit manufacture. I have a degree of knowledge about such groups.

The power of association is one that should not likely by itself lead to criminal liability. The reason for that is clear: it is like a company, and there are fundamental laws in a company dictating whose conduct becomes the conduct of the company. It is called the law of attribution. The conduct of a person in the company under civil law may bind the company but under the criminal law ordinarily will not, historically, unless that person is the mind and will of the company—quite senior—or further down the company if it were to do with other rules of interpretation based on the articles of association or the incorporation et cetera of the company. We need to be very cautious about attributing the conduct of individuals to organisations without clear definition and clear proof. What you do once you do have such attribution and such rules is to then talk of introducing quite extraordinary powers to prosecute and convict on criminal offences that are currently not known to the law. So there are real potential difficulties.

The solution to these sorts of issues is quite clearly the adequate definition of offences. Indeed, they are already adequately defined. Some of the notions that are raised here do not have within them adequate definition. If you are going to introduce laws, they must adequately define precisely who is captured and what conduct is captured. Frankly, the current proposals do not. Even the South Australian legislation and the New South Wales legislation, frankly, do not adequately define.

Mr WOOD —Is there anything in the South Australian legislation to do with declaring an organisation? Are you opposed to that too? We are talking about associations. Is there a blanket dislike of the laws?

Mr Ray —Absolutely, and logically so. What troubles me about the blanket declaration is that you have legitimate friendships and relationships with neighbours and with relatives that suddenly subject you, through those relationships, to a potential criminal charge. That is quite extraordinary. I know that in the South Australian legislation they do exempt certain relatives so that a spouse, former spouse, brother, sister, parents and grandparents are exempted. But there would still be a broad range of relatives that many people would keep in touch with and there would be absolutely no criminal intent behind that contact and yet it would be the creation of an illegal relationship. We have to be very cautious in this day and age about creating criminal offences that are new and do not reflect criminal intent or criminal conduct.

The other, I think, good example is the New South Wales approach to this legislation. The Crimes Legislation Amendment (Gangs) Act introduces legislation that we find extraordinary and we do so for the following reason: what it does is to, again, define relationships and extend criminal conduct. I can give you an example. What it does is to suggest that there are new offences. The new offences, for example, are participation in a criminal group knowing that it is a criminal group or being reckless about that. That can lead to criminal liability and a punishment of up to five years.

Many of us have kids. Let us say that there are three kids who are talking about going out and painting some graffiti. That is criminal damage and would be criminal activity that would come under New South Wales legislation. Those three kids come up to one of your kids. Your kid would not participate in the normal way of aiding and abetting or being a joint venturer in a criminal conspiracy, and yet they might say to them, ‘Do you know a nice blank wall that we can paint on?’ Your kid answers, ‘Yes, I do. It’s at such and such a place.’ But the kid does not want to participate—under the rules of aiding and abetting, as I said, there is no offence—and the three other kids go away and actually start painting and commit an act of criminal damage. The New South Wales legislation is broad enough to introduce criminal liability to the child who has participated recklessly, arguably even knowingly, in a serious criminal offence—one of criminal damage—leading to imprisonment for up to five years. That legislation surely could never have intended to capture that sort of conduct. It is the unintended consequences of this sort of draconian legislation that we are concerned about.

Mr WOOD —Could I just digress a little bit. I am sure that you have a fairly good knowledge of Commonwealth terrorism laws. Would that be correct?

Mr Ray —I have knowledge of them.

Mr WOOD —Regarding one of the issues on the referral of powers from the state to the Commonwealth, there have been concerns raised that, if we did have a terrorist attack and the states did not use the Commonwealth terrorism laws and went back to their state legislation, that may be unconstitutional. Do you have any feelings about that? Are the states bound to use the federal laws or can they actually just use their existing state laws?

Mr Ray —The immediate response is that the Commonwealth does not have criminal legislation, fundamentally. The criminal legislation is state based. The Commonwealth does have express powers when it comes to transnational organised crime and terrorism. There could be an argument that laws to regulate internal criminal laws, such as organised crime within Australia, is beyond the power of the Commonwealth. That is an area of potential difficulty for those who are drafting this sort of legislation.

Mr WOOD —I am actually trying to find out about terrorism legislation which has been passed—it is involved in the inquiry—so I am more after your legal opinion as to whether it has been discussed—

Mr Ray —I could invite Sarah or Rosemary to contribute, but I am certainly not aware of any specific constitutional challenge. It is an issue that has been raised: if the law is misused for domestic criminal investigative purposes. That is a potential issue.

Mr WOOD —I suppose I am more after: if there was a terrorist attack and, say, the state police said, ‘No, we will not use Commonwealth terrorism legislation; we will revert to our state legislation,’ because they have referred their powers to the Commonwealth, will that cause any problems?

Mr Ray —No. For example, in Victoria, if there is a conspiracy to commit criminal damage or a conspiracy to murder by planting a bomb at the MCG on grand final day, no matter which team is playing, it might be an offence. The reality is that that is an offence under the Victorian Crimes Act and that would be an offence properly investigated under the powers within that state, and charges could, would and should be laid. There would be no difficulties with that occurring within Victoria.

Mr WOOD —Even if it has been declared a terrorist incident, it would not make any difference? I know you would have to be fairly au fait with the terrorism laws with these questions.

Mr Ray —I would hand over to others and invite their comment. I spoke at the Clarke inquiry. Issues were raised at the public hearing component of the Clarke inquiry in relation to terrorism laws. Two of the speakers raised the issue of whether or not these extensive terrorism laws were necessary. Underpinning that view is the opinion that the state laws, properly interpreted and properly enforced, cover those acts of terrorism. Why? Because there is a conspiracy to kill or a conspiracy to do criminal damage. In those circumstances, the state laws can adequately cover them. Regarding a declaration, which is what you raised, Sarah may have a view about that.

Miss Moulds —No. We could take it on notice.

Ms Budavari —We would have to take it on notice.

Mr WOOD —Could you take that on notice? I would be very interested to find out.

CHAIR —Equally, if we could get a copy of your paper that you delivered in Kuala Lumpur on money laundering.

Mr Ray —That is a broader paper and it is an interesting issue in relation to the capture of the conduct of lawyers when primarily in the first tranche of legislation they were looking at bullion dealers, casinos, jewellers and a range of other people. The first tranche of that legislation has already gone through and it involved the accidental capture of some of the conduct of lawyers simply by the entry of moneys into trust accounts and movement out.

The next tranche of legislation is due to come through soon, with ongoing relations and discussions with the government. That second tranche of legislation will cover a range of conduct which will be a risk based analysis by the profession, the adequate client identification, a range of issues and the most contentious issue being the suspicious transaction reporting issue—which is arguably to be imposed on lawyers in circumstances that will cause them to change from being a confidential adviser to being a covert, state based informer. It creates a fundamental tension in the obligations and duties of lawyers to their clients. That has been implemented in some overseas countries and rejected by some overseas countries. That paper is not strictly on all fours with this, but it certainly might be a matter of a broader interest for you.

CHAIR —Thank you very much. If you could pass that on to us, that would be great.

Mr HAYES —Thank you very much for your paper. Obviously we have spent a lot of time so far looking at the South Australian legislation and also determining that there is no unanimity about all of this. Does the council agree with the submission of the police in South Australia and the government in South Australia that—without putting words into their mouth but to summarise—this is to deter people from becoming members of organisations that may have a criminal intent in order to prevent the participation in crime? Or do you hold the view, which I think was the South Australian bar council’s position, that criminal law is effectively based on committing the crime and then being prosecuted for having done so?

Mr Ray —I agree with the South Australian submission to the legal profession’s submission to you, but normal criminal legislation does recognise that there is not only a fundamental deterrence effect through the normal criminal justice process but the community is entitled to protection through the early detection of crime. We should accept that and we should accept, for example, that the adequate and appropriate use of the listening device legislation and the adequate use of surveillance legislation—that is surveillance powers—should enable an effective police force, properly resourced, to actually investigate crime before it occurs, based on the information of appropriate criminal information, and to act and charge people with, for example, conspiracy to commit the offence. You can do so, as long as you have the evidence, and you can thereby prevent the occurrence of the offence itself. So, yes, I agree with the South Australian legal profession that criminal law, as it is, ordinarily relies upon the commission of an offence and appropriate use of the law to punish those who do it. But the existing law still provides for the adequate investigation of material and charging of conspiracies before offences occur and, in that way, the community is protected. That happens already with conspiracy to import heroin and conspiracy to commit a range of offences where effective investigations lead to the arrest, charging, prosecution and conviction of people and protection of the public before the offence is committed.

What we do not want is to say we will now deter people from joining a particular group. As has been said by a number of the police forces, the mere declaration of a group as an undesirable, criminal or illegal group—you can call them anything you like—has a number of consequences. Firstly, it is often on imprecise material. You would like judicial oversight for that declaration, were it to occur. Once you declare it, you are often then driving the operatives within that group underground, and you make the surveillance, the monitoring and the charging of those people so much harder. What you are also doing is running the risk of declaring bona fide groups or individuals to be criminals by mere association and without any involvement in a criminal offence.

Mr HAYES —What you are saying is pretty consistent with the views of the many law enforcement officers that have already appeared before us.

Mr Ray —That is reassuring.

Mr HAYES —There is always going to be a victim in waiting for a crime to make a successful prosecution, because we are waiting for the crime to occur. Going back to what you said about surveillance, I am not sure the Council for Civil Liberties took the same view as you in terms of when surveillance activity was actually introduced into the legislation. Is that something that was introduced against the wishes of the legal fraternity that has since proven to be of use in deterring crime?

Mr Ray —Let me go back to the example that I gave you—that is, my involvement in the prosecution of the Hells Angels. After some information was received by members of the Victoria police force, the area where the Angels were manufacturing amphetamines, a place called Hurstbridge in outer suburban Melbourne, and those individuals were then subject to surveillance. There was a listening device appropriately obtained by a warrant and with judicial scrutiny and approval. That listening device was inserted into the premises. The comings and goings of people were recorded and reported. There was then subsequently a raid on the premises. Through the appropriate use of existing powers, a prosecution occurred where existing members of that particular group were convicted of criminal offences. That seems to me to highlight the efficacy of the existing law, and this is going back to the mid to late eighties. It highlights to me that, properly used and without encroaching at all on innocent people’s civil liberties, the appropriate law was utilised and, with listening devices and surveillance, successful prosecution occurred.

Mr HAYES —Was there supporting evidence for the prosecution given by fellow Hells Angels against those that you targeted?

Mr Ray —At the retrial there was a person who was a recently retired member of the Angels who gave evidence against existing members of the Hells Angels.

Mr HAYES —But there was a code of silence.

Mr Ray —There historically was, to my knowledge. That person gave evidence in circumstances where he expected some pressure to be applied to him. He relocated, and in the lead-up to the trial there was a suggestion that he was subjected to some interesting visits by other members of that group. It was probably the first time in the world where a former Hells Angel had given evidence against other members.

Mr HAYES —So you would accept that, with serious and organised crime and with OMCGs in particular, you cannot simply serve someone with a notice to appear and give evidence in court and expect them to comply with it.

Mr Ray —I agree, but there are real problems with the application of the coercive interview power—for example, pursuant to the Victorian act, the Major Crime (Investigative Powers) Act. That creates some difficulties where, say, there is an individual who is an innocent neighbour in the location where a bikie group might be conducting some illegal activity. To suggest that that person can be taken off the street, taken before an investigative body, have no right to remain silent and be coercively interviewed creates real issues. That is an act that I think takes the investigative power too far. It is an act introduced in Victoria based on one particular, very large, investigation into one very significant, affluent family. Often single instances are the cause of the introduction of bad legislation. I am concerned about the use of coercive powers in broader criminal investigations. It has to be used very sparingly. But I do recognise that it is often not easy to get witnesses before a court when they may perceive personal risk. That is why the adequate use of investigative powers and the proper preparation by competent police officers is vital.

In my view, the case that I referred you to—of the prosecution of the Angels—was in fact properly proved on normal admissible evidence. It became a bonus that one person, who was the highly competent, internally trained chemist in the investigative process, turned around and gave evidence for us eventually.

Mr HAYES —I know that this is not where your submission went, but from your observation and having regard to the fact that you represent both prosecutors and defenders and all those who are professional practitioners of the law, would you consider that we have problems associated with serious and organised crime in this country?

Mr Ray —The answer is yes, of course. On all evidence properly introduced, there is a problem with crime full stop, and a portion of it is, of course, organised crime.

Mr HAYES —We have seen recently in the UK the making of amendments to the application of criminal law, in certain circumstances withdrawing the right of silence, and special legislation being introduced in other parts of the world in terms of serious and organised crime. Should we be considered any different out here?

Mr Ray —No, but you should look to not only the introduction of legislation elsewhere but the consequences of that introduction and the criticism raised in relation to it. An example is the introduction of the anti-money-laundering legislation in England. That led to the suspicious transaction reporting obligation that I have raised previously. That in turn led to, in the first 12 months of that legislation in England, 14,000 suspicious transaction reports being made. The information was too great, it overloaded the regulator, and less than one per cent of that information was adequately processed. In other words, will the legislation in fact achieve the goal that it is intended to achieve? That is the first question you must ask. The second question is: will it be introduced at a price that is too high for the community in previously well-established rights? The final question is: where is the clear proof? The mere existence of an ongoing offence is not that clear proof. Where is the proof that the existing investigative powers are not effective? Is it a resourcing question? What is it? What we need is clear evidence of these issues being necessary to be introduced. The mere fact that legislation is introduced offshore does not give it a seal of approval in Australia. There is plenty of evidence of that. For example, in England they tried to introduce detention power in the terrorism legislation that was far too long. The mere fact that they try and do it there does not mean that we should do it here, particularly when the informed commentators in England say that it is not good.

Mr HAYES —I accept that, and I think it is probably correct. I am simply indicating that we probably are not Robinson Crusoe when dealing with the development of serious and organised crime presently. I have one final question. Having regard to the issue of crime prevention and deterring participation in crime, what would the Law Council’s position be with respect to unified or consistent unexplained wealth legislation?

Mr Ray —That is, in effect, a reverse onus allegation. We would say that that gives rise to genuine concern. The existing confiscation legislation is already quite strong.

Mr HAYES —That is for proceeds of crime. What I am talking about is unexplained wealth as it applies, to an extent, in Western Australia and more recently in the Northern Territory. As a deterrent to participation in crime, understanding that there are civil liberty aspects to it—

Mr Ray —There are.

Mr HAYES —If you are asked to explain you either explain or you do not explain, but is it fair that if you cannot explain you forfeit the assets?

Mr Ray —It is not only if you cannot; it is if you choose not to. You may choose not to for a range of reasons. I would like to take that question on notice, if you do not mind.

Mr HAYES —Sure.

Mr Ray —My immediate response is this. Say that, on normal principles, you have a reason to investigate Ross Ray and in the course of that investigation you have a suspicion that I have been involved in organised crime. You know that my income is X per year, through your general investigations. You know that my asset base might be a thousand times X. If, from your normal, proper investigations and association with people who are involved in organised crime or people who may have been involved in a significant incident, I have unexplained wealth but there is a prima face a case against me, I have no difficulties with the circumstance that you raised applying there. But what I do not like—

Mr HAYES —Not a prima facie case. If you are in a position where you cannot justify your wealth in terms of your earnings and are under investigation without having a charge raised against you, if you fail to comply, should that be something that would be of assistance in pursuing serious and organised crime in this country? You indicated that you wanted to take that on notice. I am happy for you to do that.

Mr Ray —I will. It is interesting that, for example, guidelines created for the legal profession in the money-laundering legislation would indicate that when looking at your client there are high- and low-risk people and high- and low-risk transactions that you may deal with. If you deal with people who, for example, create a legal person through a trust structure and it is difficult to determine the true beneficial owner and there is doubt about that circumstance or they have significant unexplained wealth, then you to get to a higher risk where it increases the onus on you as a professional to make the inquiry. Or you might have what is referred to as a PEP, a politically exposed person, someone from a foreign poorly regulated country who arrives in your country with a very high level of unexplained wealth. There are examples of that worldwide. That would set off alarm bells in most normal people and would cause professionals to make inquiries. It may cause regulators to commence an investigation. Whether it should cause that person to forfeit the asset is a completely different issue. It is one thing to say that it is an appropriate investigative trigger. That is fine. But it is a matter of concern that, effectively on a reverse onus, we are suspicious. The attitude is: ‘You disprove it. If you don’t disprove it, I’m taking that asset from you.’ That is immediately a concept that I am not happy with, I must say. But we will provide you with a further response in due course.

It is interesting—the existing confiscation of profit legislation has within it the option of effectively seizing assets, even when there is no criminal prosecution. There are many people who view that step as too strong in any event, but it exists. There is also a presumption that if you are involved with a serious offence—that is, involving an amount in excess of $10,000—then the legislation provides for, in effect, a reverse onus whereby the onus falls upon you as the person charged or involved to prove that the assets that you have are legally and legitimately acquired. That is very strong legislation, and I query the need to go beyond it. One can imagine what might happen were we to have the criminal cartel conduct that has just been spoken of by the government, where, historically, we know Mr Pratt accepted a civil penalty. If we put that into the criminal setting—and, indeed, it could apply even in the civil setting—a serious offence involving more than $10,000 with a reverse onus presumption that the assets of that particular company are ill gotten gains. It is very strong legislation, and I query the need to go beyond it.

Mr HAYES —Thank you.

Ms LEY —Thank you for your submission. I wonder if you could comment frankly on your views on the performance and culture of policing within our law enforcement agencies.

Mr Ray —I am happy to do that. I think the police, properly resourced, do a terrific job. I make it clear that a great deal of my work as a junior barrister was involved in the prosecution of criminal offences in Victoria. I did back-to-back murder trials in the state for some years, so I have been involved in many criminal cases, both as a prosecutor and as defence counsel. I generally have a high regard for members of the police force. I was also involved in a major investigation into police corruption in Victoria, and I am aware that there are some police officers who take advantage of opportunistic circumstances, but they are very much in the minority. I believe that police powers are appropriately made available to them.

I have a very strong view that broader powers and coercive powers should be the subject of judicial oversight. I think it is very important to have that judicial oversight. For example, at the crime commission level, no matter how effective and how good police officers are, they are a product of their environment and they are a product of the work they have done over 30 years. To have a judicial oversight of coercive powers is an appropriate safeguard. To have, for example, a committee of chief commissioners exercising the discretionary oversight to declare a case as one appropriate for coercive powers, to me, is not an adequate safeguard. I think there is a danger that, as I am a product of being a criminal barrister and a barrister involved in the regulation not only of the community but also of companies for many years, I am a product of that level of knowledge. So too are commissioners. I would prefer that a panel of commissioners sitting as a committee were not the deciding body for the declaration of an appropriate criminal investigation that warrants coercive powers. That is an old-style traditional view, I suppose, but it is important.

Ms LEY —You have commented in your submission on the enhanced investigative powers—you are presumably concerned that this trend is going to keep going—and your concern that the ability of the justice system may be compromised. Can you just expand on that little bit further?

Mr Ray —I am not sure about the setting in which you raise that, but I can give you an example. With the terrorism legislation that is now the subject of that close inquiry by Mr Clarke in the investigation into Dr Haneef’s conduct, you have clearly legislation that limits the amount of time that a person can be kept in custody, and within that legislation there is the capacity to declare dead time. There is no limit on how long that is. At the moment, that declaration can be made by a justice of the peace, and it can be made in circumstances where the person being investigated is not represented or, if they are represented, that person is not made aware of the Crown case, so there is not the capacity to test that out. It was very much the Law Council’s position that that should be the subject of senior judicial review—and, when I say ‘review’, I mean oversight for the decision, not a subsequent appeal. The reason is that the community is entitled to have these offences properly investigated. Because the origin of the threat may be offshore, there is recognition of the need to investigate and, because of time differences, build in a leeway for the investigative officers to say, ‘I’m not going to get an answer on that until midday tomorrow,’ or, ‘I can’t do it within that time.’

So it is sensible to have some flexibility, but the Law Council wants that flexibility to be subject to judicial oversight because it introduces a degree of objective integrity to the process. Without that, we know—and it may be inappropriate to comment too strongly, because the Clarke inquiry has not handed down its findings—that the conduct of the prosecution and the interpretation of that provision by the police, by the DPP and perhaps by a low-level judicial officer such as a JP or ultimately a magistrate have created a questionable detention of a person. Therefore, that is a very good example of the need to respond to independent judicial oversight to improve scrutiny and to improve, if you like, even protection of the police involved in the investigation, because making it subject to that oversight not only protects the individual being investigated but protects the integrity of the investigative body, such as the Federal Police. They are subject to accountability. They know that, so they produce appropriate material that is subject to scrutiny and is approved. That becomes a wholesome, transparent process.

Ms LEY —That was a good way of answering it. Thank you. Finally, and you have touched on this, what are your views on the oversight required and your views on the coercive investigative powers of the ACC?

Mr Ray —I think I have shared that view. In the current climate, it is understandable that some investigative bodies and people such as the Federal Police have a degree of knowledge that sometimes taints their independent judgement. I do not criticise them for that because they have a high level of knowledge about conduct in the community that many others do not have. That makes them very effective investigators but may, from time to time, taint the capacity to make an independent judgement about the interpretation of legislation and, for example, the exercise of discretion. If you have the exercise of discretion and a decision about the introduction of coercive powers, it is my view that such an exercise of discretion should be the subject of independent judicial scrutiny, when it is such an important component of investigation.

Going back to basics, we all know that before police had to audiotape and, in some significant crimes, videotape records of interview there was a degree of lack of accountability. A lovely quote was produced to me when I was prosecuting a case. As a young barrister, I said to the investigating officer, ‘It’s a shame we don’t have any admissions in this case.’ The response was, ‘Oh, Mr Ray, did I forget to tell you about this?’ This police officer said, ‘When I brought this person back from Queensland he had a conversation with me in the aircraft,’ and out came a very clear admission in circumstances where, had it been an admission, I would have expected it to have been in the original brief. It had a number of wonderful sugar-coatings in it. Mr X, the police officer, was told, ‘A lot of poor people got a lot of benefit out of what I did,’ so it had the Ned Kelly component in it as well. That sort of naughtiness and also the offender’s wrongful allegations about the police misconduct, as in ‘I was bashed to make the confession,’ were all sanitised because of the introduction of oversight and scrutiny through the recording of interviews.

In the same way, investigative powers give police great, great power and great influence. It is very important that they utilise that properly and fairly, and invariably they do. But one of the reasons they do is that it is subject to scrutiny and subject, in due course in a case, to, ‘I’m going to be cross-examined about this.’ People do need to be accountable, and the best way of having accountability is independent judicial oversight.

Ms LEY —Thank you.

CHAIR —Thank you very much, Mr Ray and your officers, for coming along this afternoon. We look forward to hearing from you with those documents and on those questions on notice. Thank you.

Mr Ray —We are happy to help you in any way we can. If you find in due course that you have any further queries that you would like to raise with us that you think the legal profession of Australia can assist you with, we will be very happy to assist you. In issues such as this, we do speak as the national voice of the profession, and we are very happy to help you.

CHAIR —Thank you.

[1.57 pm]