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Wednesday, 6 June 1984
Page: 2681


Senator MISSEN(9.20) —In speaking on the third reading of the National Crime Authority Bill 1983, I want to make it very clear that what I am doing is saying that I do not believe that this is a Bill that should pass the third reading stage and I, for one, will certainly record my vote against it. I am sorry that other members of the Opposition will not. I am pleased that Senator Durack said in the concluding stages of his speech that when the Opposition comes to power it will take action to repair this Bill, to repair the damage which I believe will have been done by an authority which will be operating under the very inadequate powers which it has been given by this Senate and, presumably, by the House of Representatives after being bulldozed through that place.

Although I was absent from this chamber today and part of yesterday due to an unfortunate action on the part of the Opposition due to a blunder which I think we may later regret, I think we did not show a forceful enough need to indicate our opposition to decisions which were being made. Nonetheless, I want to say this about the debate, most of which I have been listening to today: I commend Senator Durack, the shadow Attorney-General, Senator Lewis and others who, I think, made excellent points which were often defeated in debate and as a result of divisions.


Senator Gareth Evans —You will need some friends after your performance.


Senator MISSEN —I cannot hear the Attorney-General. I will not bother listening to him. I have heard him too often today. I believe that many of the points have been argued effectively and that they will stand in the record of time. However, I believe that what has happened in the last day and a half is that the Bill has been improved by the incorporation of certain of the majority recommendations of the Senate Standing Committee on Constitutional and Legal Affairs. However, with one exception, none of the major criticisms which I made in the course of my minority report as a member of that Senate Committee and which were, with that one exception, incorporated in amendments which the Opposition presented during the Committee of the Whole debate in the last day and a half was met. Consequently, because the Australian Democrats did not support those amendments they were defeated. I believe that we will have reason to see in the course of the next few years the deficiencies which this Bill contains. I am glad that members of this Parliament, as a result of the carriage of one of the Opposition 's amendments, will be in a position to question, examine and ascertain the defects so that when we come back to office at least we will be in a position to repair those defects.

As I say, I have listened to the debate that has taken place today. I want to say something about the matters which have been decided because it is very easy to lose the whole effect by going through a great number of amendments and thinking that because some things have been passed substantial objections have been met. What I want to do is briefly to take honourable senators through the nine major objections which I in my minority report presented to the Senate as being matters which need to be cured and, with one exception, the Opposition was endeavouring to cure. Except in one case, none of them has been satisfactorily overcome. Of those problems the first is ensuring that the effective attack undertaken by the Costigan Royal Commission into the Activities of the Federated Ship Painters and Dockers Union can be continued by the new Authority. That is perhaps a general one. If one reads the substantial evidence which Mr Frank Costigan and other witnesses gave to the Senate Committee one will realise that what has been done by the Senate Committee and by the Senate itself has not been adequate and what will follow the Costigan Royal Commission is a very weak, puny infant that is not likely to be able to take up and complete the work which Costigan has done. Such a body will not be able to go into other areas unless it has the blessing of the intergovernmental committee which remains in the legislation in all its horror, though it has been improved a little bit and some things have been taken out of its aegis.

The second of the matters I raised was the need to expand the purposes of the new Authority so that it can, of its own motion, proceed with effective information gathering, surveillance, collation of evidence leading to prosecution and forfeiture of illegal profits and other civil remedies. In some areas, that has been achieved. There are some improvements. But honourable senators will notice that I say: 'Of its own motion'. That was the subject of the amendment last night on which I left this chamber because I regard that that is of essence to the new Authority. I believe that the Authority should not be dependent on a conglomeration of State Ministers which will pre-advertise throughout the world an inquiry that is supposed to go ahead, with all the results that that will have, and then depend upon that organisation to give it the power before it can move from a position where it is like any other citizen in that it can ask questions but cannot demand answers. The evidence of Redlich, Costigan and others shows that that power is needed. The idea that there is a difference between ordinary and special powers has been rejected by the Committee. This distinction, which the Committee has kept, will lead to an impossible situation for this body.

Thirdly, I recommend that there was a need to provide the Authority, when needed, with strong coercive powers for obtaining information following the money trail in getting to the central figures of organised crime. That is very essential. In fact, the Authority will not be able to do that unless it can get past the problems in regard to whether a State police force can handle it, unless it can get to a situation where it can convince this intergovernmental committee that the exercise of federal powers is necessary. That is something that will not be able to be done.

The fourth recommendation related to burdening the Authority with excessive powers given to an intergovernmental committee, arming it with veto powers over the commencement and continuation of inquiries. There have been some improvements in regard to the veto powers. But the situation still remains unsatisfactory. Of course, because the Authority does not have the powers it will be constantly at the beck and call of an intergovernmental committee. I have no doubt that that committee will use those powers to inhibit the Authority .

Fifthly, I referred to the problem of the promotion of excessive indemnity provisions and denying the Authority the opportunity to pursue lines of investigation. I heard Senator Durack and others argue tonight about the insertion of an indemnity provision in the Bill. I heard even the Attorney- General having doubts because the original Bill contained much less than that. Tonight I heard him expressing his doubts as to whether this goes too far. Indeed it will go too far. Indeed, we will find that a great deal of the evidence that this Authority could otherwise get together is going to be denied to it. It will be faced with a constant legal battle in which it will be told: ' You only learnt of this because I spilt the beans before the inquiry and therefore you cannot use all the information that you have developed from that'. I am afraid that that is going to be an absolute fatal blot on the powers of this Authority.

My sixth point is the failure to retain in the Authority a proper discretion to hold public hearings and keep the public informed of criminal frauds and conspiracies. This is the one area in which the Opposition amendments did not follow my minority report recommendations. I was prepared to go along with that if in fact we were able in our other amendments and with the assistance, we hoped, of the Australian Democrats, to ensure that this Authority had the strength to be able to do these things. Now the Authority, in its weakened state , we will find, lacks the power to go to the public. The power for the Authority to by-pass the governments which are trying to inhibit it and the power to put its evidence before the public will be very necessary powers which are lacking in this Authority. I consequently believe that this is one of the problems. This weakness that the Authority will have will be a weakness behind closed doors. We know that people will, therefore, be able to attack it with impunity. It will not be able to defend itself. I fear that the failure which we in the Opposition have had to obtain the support of the Democrats to ensure that these powers are in the legislation will mean that the lack of a public hearing will be all the more detrimental in the future.

My seventh objection is the failure to promote a system of appointment of members of the Authority to ensure that members are highly competent, respected and able to perform effectively.


Senator Georges —I take a point of order. Mr Acting Deputy President, I draw your attention to standing order 415 which states:

No Senator shall reflect upon any Vote of the Senate, except for the purpose of moving that such Vote be rescinded.

Standing order 413 may be relevant in a different way. I would suggest that what Senator Missen is doing is reflecting upon the votes that have been taken in the Committee of the Whole, the manner in which they took place and the debate that led to the votes taking place. Therefore, I would suggest to you, Mr Acting Deputy President, that the honourable senator is out of order.


Senator Missen —Mr Acting Deputy President, in reply to the point of order: I am explaining why I will vote against the third reading of this Bill. I am not reflecting on the vote. That is the majority view of the Senate. I am explaining why I cannot vote for this Bill at the third reading stage. That standing order can never be interpreted to mean that a senator cannot explain to this House why he is voting the way he is.


The ACTING DEPUTY PRESIDENT (Senator Elstob) —Senator Missen indicated in the first place that he was opposing the third reading. I ask him to confine himself to that section.


Senator MISSEN —My eighth point is as follows:

Failing to promote a system of appointment of members of the Authority to ensure that members are highly competent, respected and able to perform effectively.

I must say that I do not have the same confidence that Senator Durack has in these members who are appointed. There are now just three in all and two of them have constituencies-the Police Ministers and Attorneys-General. I can understand that it is desirable to have such representatives who give the State Ministers some influence in this. If our recommendation of a five member Authority had been accepted, with a majority appointed, including people with specialised authority and experience, that would not have mattered. We will have a Commonwealth authority financed by Commonwealth money. It will have a majority of its members determined by a constituency mostly composed of State Ministers; who have to be appointed, if honourable senators remember, by the unanimous decision of those Ministers. If they cannot agree, the Attorney-General or apparently the Special Minister of State will proceed to make the appointment. But assuming that they agree on some public relations figure, some person who has never offended any of the States of the Commonwealth, and who is liked by all the Attorneys-General and, on the other hand, by all the Police Ministers, we can imagine the sort of person we are likely to get.

I have the gravest doubts of the ability of the type of people who will apply for appointment to a body of this weakened nature. If we are to get unanimity among those groups of Ministers I believe we will get someone who has not got the sufficient strength of character, who has not offended anybody and who has not got the courage to move quickly and firmly in these areas. I fear for the types of appointments which the Attorney-General may be forced to make because the rest of the Ministers choose that sort of person. Of course that is important. With all the powers that the Authority might have, the type of people who are appointed to it and who constitute it are of vital importance. I regret that we have very little hope of their being of the calibre that is needed.

The ninth and only matter which I raise which is covered, is that of failing to provide an adequate system of parliamentary monitoring of legislation. I am glad to see that that committee will be there, assuming this legislation passes both Houses of the Parliament. It remains a slender thread by which we will, in the next few years, be able to monitor what is happening, whereby members of the Parliament will be able to obtain real experience as to what such a body is doing, where it is being inhibited and to what extent the various powers in this Bill are being used to frustrate the work of that body to control and suppress organised crime in this country. Unless it has that strength, I fear we are all in trouble. The shadow Attorney-General mentioned two matters that went beyond the Senate Committee. One was that the Authority should act on its own initiative, which I have mentioned was not dealt with. The Senate, unfortunately , has rejected that power. The other point is that of the three members of the Authority. Those are matters which are gone from this Bill and which will need to be changed in the future.

In conclusion I say two things: In the document that I incorporated in my speech I raised the salient point that there are great dangers in this Bill so far as the references of State powers are concerned. I do not think this matter has been considered. If we do not get uniform legislation from the States, if we have piecemeal legislation empowering the Authority to investigate certain matters of State law, I can see a considerable field for lawyers and a considerable constitutional challenge. We may have the Authority handling an investigation and taking evidence in regard to one State and having strong powers in one State parliament and weaker powers in another State parliament. I see a very grave situation here which has not been faced up to in this Bill, and I do not think it has been debated at all in this chamber.

The last thing I want to say is that the Opposition has been consistent in respect of the fight against organised crime. It put down a Bill two years ago which I think stands high by comparison to this one. It could have done an excellent job and it could have obtained the support of the States. The present Government has failed to take up the initiative. Instead we have a patchwork quilt here; a Bill which is a product of competing forces inside the Australian Labor Party and outside the Labor Party, of compromise which regrettably the Australian Democrats--


Senator Georges —Mr Acting Deputy President, I raise the same point of order. Surely that is a reflection upon the vote of the Senate and those who took part in that vote.


Senator MISSEN —No, it is not.


Senator Georges —If it is not, I have not been listening very carefully. It seems to me that Senator Missen has reflected upon those who participated in the vote. He has been highly critical of those people and the methods by which they reached their decision. That decision was reached by a vote of the Senate and he is reflecting on that vote. Mr Acting Deputy President, I suggest that he is out of order.


Senator MISSEN —I assure the Senate that I am not. I am pointing out that the Bill which has come forward is a patchwork quilt. It comes from various people, many of them outside this chamber. I am not reflecting on the honourable senators here, who, I am sure have all endeavoured to turn their minds and abilities to the best provisions in this Bill. Some of them may have been faulty , but it is the forces outside which had a lot of influence on the nature of this Bill.


The ACTING DEPUTY PRESIDENT —Order! There is no point of order. Senator Missen, I ask you once again to keep to the third reading of the Bill.


Senator MISSEN —I am coming to my conclusions. My point is that the Opposition, on the other hand, has had a consistent record in its fight against organised crime. It had an excellent Bill, which it can stand by. It has taken a strong attitude in regard to the alterations that ought to be made to this Bill. I trust that it will continue with this matter and will argue it before the people . The Australian people do not yet have sufficient knowledge of the extent to which organised crime exists and the extent to which it must be fought with the most powerful weapons. We have failed to achieve those powerful weapons. We must go along with such as we have, because obviously this is the Bill we are going to get as it will be pushed through the other House. I am sure that in the coming years we will have reason to regret the timidity and the inability of this chamber and the other chamber to create a Bill which would have properly dealt with the problem of organised crime in this country. I therefore will vote against this motion.