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Tuesday, 5 June 1984
Page: 2546

Senator GARETH EVANS (Attorney-General)(9.24) —The Government remains unmoved by the gales of highly strung rhetoric that are flowing from Senator Missen in this matter. We prefer the kind of argument that has been articulated simply and effectively by Senator Chipp. Let me quickly repeat the main elements of this matter and meet some of the points made by Senator Durack. Of course it is the case that the raison d'etre of this organisation is its capacity to exercise coercive powers above and beyond those that are within the competence of ordinary police forces. But it does not necessarily follow from that that it is appropriate for those coercive powers to be exercised at the whim of the Authority on the basis of perhaps very flimsy hunches or suspicions or intuitions and in a way that is not subject to some executive control or some line of accountability to government.

The difficulty about establishing a crime authority with an ongoing tenure and very open-ended terms of reference or terms of reference that are as broad as those contained in the definition of 'relevant offence' which we have already debated is that it is possible for such an authority to wander at large and become in many significant ways quite unaccountable to government. That is a dangerous matter when one is talking about the exercise of fairly unprecedented coercive powers of this kind. Hitherto royal commissions have exercised these sorts of powers, in some ways even greater powers, but they have done so in the context of particular terms of reference. Indeed, one of the criticisms that has been reasonably advanced of the Costigan Royal Commission, while acknowledging the constructive work that this has done, is that a great many of its investigative activities have roamed a very long way indeed from its original terms of reference, thus arousing a concern-a very well founded concern-in a number of quarters, where it is thought that the Commission is becoming too much of entity unto itself. It is thought that the Commission has the potential to display too little accountability to any given government of the day. This is a sensitive question because one wants these authorities to have a capacity for a degree of independence and certainly to be immune from coercion or political control; but equally, the traditional principles of accountability through the executive government to Parliament are very important to maintain when the liberty of the subject is at stake, as it is with the exercise of the sorts of powers we are discussing here.

The approach that the Government has adopted and which is accepted by the majority of the Committee is that by all means those coercive powers should be available, but only in the context of a shaped-up reference which has been explicitly the subject of decision and endorsement by the proposed Inter- Governmental Committee. The criticism then reduces to the argument that that Committee will be a very cumbersome vehicle to move into operation and that it cannot be expected to react swiftly to situations as they arise and perhaps cannot be expected to act at all if it wants to put the brakes on something it is embarrassed about seeing exposed or something that it wants to resist. I do not believe those objections are well founded. In particular, I do not think that Senator Durack's references to the rather lugubrious decision-making capacities of the Standing Committee of Attorneys-General or the Ministerial Council is a well founded analogy. Certainly, those bodies have a long time to make constructive decisions about legislation or major policy matters of that kind. But in my experience, limited certainly to just over a year, they have moved rather swiftly when it has come to endorsing investigative activities of the kind involved here. The Ministerial Council for Companies and Securities has been very quick to respond to suggestions from the National Companies and Securities Commission that there be a major investigation of the collapse of the Trustees Executors and Agency Co. Other company fraud issues, some of them generated by material supplied by the Costigan Commission, have resulted in very quick decisions by the Ministerial Council to authorise investigations. It is really the authorisation of investigations that we are talking about here.

The only difficulty that one tends to run into with inter-governmental bodies authorising anything is the concern about spending money-where it is going to come from and all the haggles one gets into with respective treasuries. What we have here, of course, is not an argument about money which has to occur each time a decision to confer a reference takes place. We have a standing body that will be well funded and well resourced by the Commonwealth. It is my belief that these inter-governmental bodies will prove themselves able to react quickly. There is provision in the legislation for telex votes and the utilisation of other electronic means of communication. There is no reason whatsoever to assume that it will be cumbersome, slow moving or will resist references where these are clearly necessary, often at relatively short notice, to enable the Authority to properly investigate something. If one accepts all that, as I think one has to, the argument then comes down to some kind of political suspicion or political cynicism about whether an inter-governmental committee will want to respond to requests from the Authority to investigate particular things. The argument there must turn on one's confidence that governments, confronted with well-founded requests to conduct investigations of that kind, simply will not- should some of them be conceivably so motivated to do so-resist that kind of request as a practical matter. I believe that is so. I believe that governments are well motivated in these matters. I do not believe in the sorts of sinister motives that have been so loosely cast around. In any event, to the extent that there might be such motives hypothetically, I believe that the political dynamics of the situation, which were referred to by Senator Crichton-Browne previously, will ensure that there is no resistance mounted to what are obviously well-based requests for references to issue.

If one accepts all that and accepts the point I am making about the mechanical aspects of decision making, the argument against this clearly divided two-tier system really falls away. It is terribly important to maintain the principle of executive control, accountability of organisations to the executive, and is only by requiring a two-tier system of ordinary and special power that any pretence of such accountability can be maintained. I urge the Committee to accept the Government's amendment and reject the Opposition amendments to it.

The CHAIRMAN —The question is that the amendment be agreed to. Those of that opinion say aye, to the contrary no. I think the ayes have it.

Senator Missen —No.

The CHAIRMAN —Are there two voices or not?

Senator Missen —Mr Chairman, I draw attention to the state of the chamber.

The CHAIRMAN —A quorum is not present. Ring the bells.

(Quorum formed)

The CHAIRMAN —The question is that the amendment moved by Senator Durack to the Attorney-General's proposed new clauses 10 and 10A be agreed to. Those of that opinion say aye; against say no. I think the noes have it.

Senator Missen —Divide.

The CHAIRMAN —Is there more than one voice? No.

Senator Missen —I indicate to the Senate that I will withdraw from this debate. It is obvious that the Opposition is not genuinely seeking to fight these important issues. I intend to take no further part in this debate. I will vote against the third reading of the Bill.

Amendment to amendment negatived.

Amendment (Senator Gareth Evans's) agreed to.