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Wednesday, 6 June 1984
Page: 2641

Senator LEWIS(4.18) —Firstly, let me apologise on behalf of my colleague, Senator Crichton-Browne. I am sure that a word in his speech slipped out without his even realising that it had slipped out. Perhaps it will be expunged from Hansard, but I think it did go to air. I wish to draw to the attention of the Committee to the difference between the chairman and the members of the National Crime Authority on the one hand and counsel, in particular senior counsel, assisting the Authority on the other hand. It is much more difficult to explain than it is to see it in action. Members of the Senate Standing Committee were in the fortunate position of seeing the Costigan Royal Commission in action and then talking with Mr Costigan and Mr Meagher, QC, senior counsel assisting Mr Costigan. From that we were able to see the difference between the Royal Commissioner on the one hand and the counsel assisting him on the other hand. They do have different roles. It is important that they do not go down an identical path.

Let me try to explain this to honourable senators. The counsel assisting the Authority becomes the hunter. He is really the pinnacle of the information which is being generated by the computer systems in operation underneath the Authority . The material is fed to officers at a senior level who then ask the computer various questions: Does A associate with B? Does A pass money to B? In which companies are A and B involved together? The officers ask the computer various questions and, as a result, information is gathered about A and B to indicate some sort of criminal connection. The Chairman of the Authority-or the Commissioner in the case of the Costigan Commission-is aware in general terms that he is looking at the case of A or B, but he is not down on the ground, in the gravel, fighting this matter. He has overriding control but he is not actually in there asking the computer the questions and generally acting as a hunter. That is the very important point in the proposals which are now before the Senate and which the Opposition is trying to bring out. Although the Chairman controls the hunters by not getting too deeply into the battle, he is the one who has to make the crucial decisions as to whether A or B becomes a target.

Once A or B becomes a target practically everyone associated with that person will know that he or she is being targeted by the Crime Authority. His or her bank will be asked to produce its records, and immediately the bank becomes aware that that person is a target. Business associates will be asked to supply information to the Authority as to why transactions took place.

Senator Crichton-Browne —They are likely to be subpoenaed.

Senator LEWIS —Yes. They are likely to be subpoenaed and they will all know that they are being subpoenaed about the affairs of A. Once a decision is taken that A is to become a target, A will be in a very difficult position until such time as he or she is cleared. It is for that reason that the Chairman and the members of the Authority must not get too much into the fire. They must be able to look at such a matter from a broad view and say: 'Well, really, although, Mr Hunter, you think there is reason to target A, in fact you are not establishing to our satisfaction that we ought to subject this person to this investigation at this stage and you need to go back and do some more homework'. So the Chairman and members of this Authority need to be extremely well versed in principles of justice and fair play, because they are the people who will really be making the vital decisions which will affect the civil liberties of the subject.

Senator Crichton-Browne —They need to really know the law.

Senator LEWIS —As Senator Crichton-Browne says, there is no doubt they really need to know the law. We cannot afford to have people involved in this Authority who may be very good and smart computer operators. They need to understand whether or not target A should be targeted and whether he or she has behaved in such a way that the Authority ought to hone in on him. The Chairman and members of the Authority will be the protectors of the civil liberties of the subject who appears before them. It is all right to talk about have a judicial audit, having the Ombudsman take a look, setting up a parliamentary committee, or giving, as we have suggested, an immediate right of appeal to a judge of the Federal Court of Australia. It is all right to put all of those protection proposals in the legislation, but there is not the slightest doubt that the most important people looking at the protection of people's civil liberties, right from the word go, will be the Chairman and members of the Authority. It is for that reason that when the Senate Standing Committee on Constitutional and Legal Affairs examined this matter it came up with recommendation 36, which states:

Clause 21 (2) should be amended to require that when conducting hearings the Authority should be constituted by at least two members.

It was felt that having made a decision to target someone and having started a hearing, there would be really a desperate need to make sure that that person is treated fairly. We felt the solution was to have a quorum of two of the three members. The Senate Standing Committee did not realise that what was in the mind of the Attorney-General (Senator Gareth Evans) at that stage was that he would not have one Crime Authority. In effect, we will have three branches of the Crime Authority, because one will be established in Melbourne, one in Sydney and another one will be sitting somewhere else. Once the Opposition realised that was what was proposed, we came up with the alternative suggestion of increasing the number of members on the Authority to five and of continuing to have a quorum of two when having hearings.

The Attorney said that suggestion would make life very difficult, and suggested we increase the number of members to six and have two in Melbourne, two in Sydney and two floating around. That seems to be a reasonable proposition. But it is wrong to talk about appointing members on the Authority who do not have legal qualifications for starters and then to give them the right to sit and hear evidence, to demand that a person comes before them. No doubt that person will be cross-examined by senior counsel. Counsel of great wisdom will be tearing into such a person in the presence of someone who is not legally trained . It seems to me that that could be a disaster in regard to the protection of what little rights a person will have once he has become targeted by the Authority. I ask the Attorney-General to rethink this matter and either accept the Opposition's proposed amendment or come up with something better than what he has come up with today.