Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Wednesday, 12 September 1984
Page: 930

Senator GARETH EVANS (Attorney-General) —by leave-When I tabled the 1983 -84 and final report of former Special Prosecutor Redlich on 7 September 1984, I said that I would make a more detailed statement responding to the report generally this week. I shall begin by stating the background. Mr Redlich was appointed by the previous Government on 21 October 1982 to deal with illegal activities identified by the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union, other than those assigned to Special Prosecutor Gyles.

On our Government assuming office, I made it clear that I saw the establishment of an Office of Director of Public Prosecutions as the longer term solution but, pending the establishment and the coming into full operation of that Office, I saw that it would be necessary and appropriate that the two Special Prosecutors continue. Thus, Mr Redlich's appointment was extended on several occasions until it terminated on 5 June 1984 when his office was taken over by the Director of Public Prosecutions, who now has an office located in Melbourne. During this period, the scope of Mr Redlich's responsibilities was twice extended: First, on 16 May 1983 to the activities of the Terrence Clark organisation identified in a particular report of the Stewart Royal Commission of Inquiry into Drug Trafficking and; second, at the suggestion of Mr Redlich it was, on 25 November 1983, extended to enable him to exercise civil remedies under the Customs Act 1901 and under Commonwealth taxation laws in respect of illegal activities of persons identified by reports of the Stewart Royal Commission under Commonwealth and State references relating to the Terrence Clark organisation.

Mr Redlich has carried out his responsibilities under these authorities in an effective and energetic manner. This is borne out by the detailed account of his activities in Chapter 1 of the present report. The transition to Office of the Director of Public Prosecutions was effected smoothly, thanks in no small part to the efforts of Mr Redlich. In succeeding chapters of the report Mr Redlich makes many observations as to the administration of the laws of the Commonwealth and also a considerable number of recommendations for changes in the law and administration.

Before considering these observations and recommendations, it is necessary to put the matter in a proper perspective. Mr Redlich was not appointed a Royal Commissioner to inquire into, and report to the Government, on particular matters. Nevertheless, insofar as his observations and recommendations are based on his experience as a Special Prosecutor, they call for careful examination and due consideration by the Government. I can assure the Senate that they have been , and will continue to be, given that examination and consideration.

I now proceed to deal with the various matters raised by Mr Redlich. Since they are matters of considerable detail and length, I seek leave to incorporate them in Hansard.

Leave granted.

The document read as follows-


(a) Civil Remedies and Pecuniary Penalties

When the Director of Public Prosecutions Act was drafted, the question arose what functions should be given to the Director in relation to:

(a) civil remedies; and

(b) recovery of pecuniary penalties.

In explanation of the term 'pecuniary penalties', I mention that a number of Commonwealth Acts, for example, the Customs Act 1901 and the Income Tax Assessment Act 1936 provide for recovery by the Government of pecuniary penalties by procedures standing some way between criminal prosecutions and civil actions. A civil remedy is any remedy which a person may take by civil action, as opposed to prosecution action, to enforce his legal rights.

It may first be noted that neither the English DPP nor the Victorian DPP had been given either such function. While under the common law system which we have inherited from the United Kingdom, Attorneys-General have long been recognised as possessing special responsibilities and functions in relation to the enforcement of the criminal law to the exclusion of other Ministers, neither he nor officers answerable to him have been regarded as having equivalent responsibilities and functions in relation to exercise of civil remedies available to the Government. The exercise of such remedies has been regarded as matter for decision by the Minister responsible for the legislation in question, the Department which he administers or the relevant statutory officer such as the Commissioner of Taxation. The Minister is, of course, answerable to Parliament for such decisions.

Against this, the experience of the 2 Special Prosecutors, Mr Gyles QC and Mr Redlich indicated that, in the special limited areas in which they operated, there was value in a Prosecutor being able, in conjunction with prosecution action, to exercise civil remedies. At the same time it was noted that the Director stood in a different position to the Special Prosecutor in that the Director's jurisdiction extended to the prosecution of all Commonwealth offences whereas that of a Special Prosecutor was limited to matters designated by the Attorney-General. It was therefore considered appropriate to provide for the Director of Public Prosecutions to be able to exercise such remedies in respect of matters designated by the Attorney-General 'in connexion with, or arising out of, prosecutions instituted or carried on by the Director'. Further he was authorised to co-ordinate or supervise the taking of civil remedies by other agencies (para. 6 (1) (h)).

At the same time, the Director was authorised, in respect of matters designated by the Attorney-General, to recover pecuniary penalties and to co-ordinate or supervise the recovery of such penalties by other agencies (para. 6 (1) (g)). I observe that the legislation was supported by the Opposition in both Houses.

On 3 June 1984, by an instrument under paras 6 (1) (g) and (h), I, in effect, gave the Director the power to exercise civil remedies in respect of the same matters as had been given to Mr Redlich as Special Prosecutor.

Mr Redlich now urges that the Act be amended:

(a) to remove the requirement that the civil remedy be connected to a prosecution which is instituted; and

(b) to remove the need for an instrument by the Attorney-General designating matters in respect of which civil remedies be exercised or pecuniary penalties recovered.

Alternatively Mr Redlich suggests that an instrument in general terms be signed by the Attorney-General to enable the Director in urgent cases exercise civil remedies in relation to matters complementary to prosecutions or investigations under his consideration.

In support of (a) Mr Redlich asserts that less than 30% of the civil remedies exercised by his office would satisfy this requirement. This information had not previously been given to the Government. Mr Redlich is supported in these recommendations by Mr Ian Temby QC, the present Director of Public Prosecutions, in a letter to me dated 10 September 1984, a copy of which I now table.

Proposal (b) (removal of the need for an instrument designating matters in respect of which civil remedies might be taken by the DPP) raises very significant and important issues. It would vest in a statutory officer unparalleled powers and discretions affecting the functions and responsibilities of other Ministers and obviously requires the most careful consideration. Proposal (a) while requiring full consideration involves less serious issues.

Great weight must be given to the views of Mr Temby and Mr Redlich. Nevertheless, different views are open and these issues must be most carefully considered and decided. I shall accordingly be taking to Cabinet at the earliest opportunity the question whether these recommendations should be implemented.

I emphasize that it is the firm concern of the Government that the Director should have all appropriate powers to enable him to carry out his very responsible role effectively and to the greatest benefit to the community generally.

(b) Facilitation of the attribution of assets and income to the criminal respondent

My colleague, the Treasurer, has supplied the following information.

''Mr Redlich has made some recommendations in relation to taxation matters in Chapter 2 of his report.

In paragraph 2.37 he makes the point that where a criminal does not lodge a taxation return the Commissioner has the choice of raising a default assessment against that person and imposing additional tax of an amount up to 100 per cent of the tax assessed or of prosecuting the taxpayer under section 223 of the income tax law where the maximum penalty is $200. If the Commissioner decides to prosecute he is required to remit the additional tax.

In this situation Mr Redlich recommends a substantial increase in the penalty for prosecution and, in addition, recommends the repeal of the provision that requires the Commissioner to remit any additional tax if he decides to prosecute .

The 1984-85 Budget Statements note that I will be introducing a Bill in the very near future proposing significant increases in the penalties presently contained in the taxation laws. This will answer the first of Mr Redlich's recommendations and will have a significant impact on the comparison drawn by Mr Redlich between the maximum penalty under a prosecution action and the maximum amount of additional tax under a default assessment action.

As to the proposal that the Commissioner should not be required to fully remit any additional tax where he takes prosecution action, one must question whether this would not subject a taxpayer to a form of double jeopardy. Under the present law the Commissioner has tended to default assess and seek additional tax because, in the great majority of cases, this will result in a far greater financial penalty on the taxpayer concerned. At the same time, some prosecutions are taken in the expectation that they will provide a deterrent effect.

The present law has for many years provided that a taxpayer should not be subject to additional tax and to prosecution action and it may be argued that this overcomes any suggestion of double jeopardy. The effect of this double jeopardy will be very much more significant under the increases in penalties that I will be proposing shortly.

In any event it should be noted that the present requirement to remit additional tax applies in respect of any prosecution action taken by the Commissioner and prosecution action taken under sections other than section 223 gives the court the authority to order the person to pay to the Commissioner an amount up to double the amount of tax that has been avoided. The effect of Mr Redlich's suggestion would be that a court would be able to impose this maximum penalty in a case where the additional tax of up to 100 per cent of the tax assessed had already been levied by the Commissioner.

In paragraphs 2.38 to 2.44 Mr Redlich notes that it is not uncommon for criminals to take action to divest themselves of assets by the creation of family trusts and companies in an attempt to place their income and assets beyond the reach of the taxation law. He recognises that this is a difficult area of the law but suggests that a comprehensive and urgent review be set up to examine the matter.

Mr Redlich suggests two possible reforms that could be made to overcome this difficulty. One would be for the various family trusts and companies being regarded as having no legal efficacy for income tax purposes unless those entities are registered with the Taxation Office within a certain period. Alternatively, he suggests amendments that would enable the Commissioner to satisfy any judgment against the taxpayer by executing that judgment against the assets owned by the family company or trust under the taxpayer's control.

As Mr Redlich admits, this is a difficult area of the law but it is one which is concerned more with the recovery of tax rather than the assessment of income tax to a particular person. The Taxation Office has been well aware of this problem for some time and has recognised the need to obtain expert advice on whether these complex arrangements could be defeated in terms of the existing law.

An arrangement has been made between the Taxation Office and the Attorney- General's Department under which the more complex recovery cases are referred for advice by the Attorney-General's Department and, if necessary, by counsel as to whether any challenge could be mounted under the existing law to various arrangements made by taxpayers for the divesting of assets. In the light of the outcome of these challenges consideration may need to be given to possible amendments of the bankruptcy law and the companies' code.''

(c) Forfeiture of assets

The Australian Police Ministers' Council at its May 1984 meeting affirmed support for reciprocal legislation regarding forfeiture of assets accumulated as a result of organised criminal activities and I propose to take up the question in the Standing Committee of Attorneys-General at its next meeting.

This is a difficult area for law reform for, while a strong case can be made out for forfeiting assets clearly accumulated as a result of serious illegal activities, in drawing up a new law to this effect, the greatest care will need to be taken to ensure that the rights of innocent persons and the safeguards generally applying in civil litigation are not abridged or destroyed.

I am sure that the Standing Committee in its consideration of this matter will give due consideration to Mr Redlich's observations.


Mr Redlich accepts that, except in one respect (as to civil remedies which I have discussed above), the Director of Public Prosecutions Act meets the major considerations identified by him. After discussing the establishment of the Office of the Director and the satisfactory transition from Mr Redlich's office to establishment of the Melbourne Office of the Director, Mr Redlich recommends-

(a) the Director be given more flexibility in connexion with staff employment terms and remuneration;

(b) adequate resources should be committed by the Commonwealth to deal with the Director's investigations and prosecutions;

(c) the Director should address the question of guidelines directed to Commonwealth Departments as provided under section 11; and

(d) finally Mr Redlich repeats his recommendation as to the amendment of the Act to deal with civil remedies which I have discussed above.

I am awaiting the Director's comments on recommendations (a) and (c). In addition, the views of the Public Service Board have been sought on recommendation (a).

As to recommendation (b), the Government is very conscious of the importance of the role of the DPP and has allocated $8,694,000 for the year 1984-85 to his Office. The Government has done all in its power to ensure that the Director has appropriate resources to enable him to carry out his very significant responsibilities. I am sure that, if the Director considers that he has need for further resources, he will approach the Government in the usual way.


The Special Minister of State and I are pleased to note Mr Redlich's general commendation of the National Crime Authority Act. See particularly his conclusion in paragraph 4.4 that the Act gives proper emphasis to the 3 factors-

The optimum means of detecting and investigating organised criminal activity

The protection of civil liberties

The integrity of the States and their law enforcement agencies.

He further concludes that there are substantial safeguards within the Act to protect the rights of witnesses and those under investigation, and the States and their investigative agencies are given a voice in the operation of the Authority. We particularly commend his closing exhortation that the Authority must now be given an opportunity to work.

At pages 49-51 Redlich discusses the need for the Authority to be able to make arrangements to facilitate the protection of witnesses. However, section 34 does specifically authorise the Authority to make arrangements for the protection of witnesses.


My colleague the Minister for Social Security has advised me that he is examining Mr Redlich's comments on matters relating to his Department and the report's recommendations for remedial action. He has forwarded the following immediate comments.

'As Mr Redlich points out in his report, much of the information contained in the report was furnished by the Department of Social Security. As Mr Redlich also points out, the social security system is being abused by a proportionately small but numerically large group of persons receiving benefits or pensions from the Department. He goes on to say ''fortunately the vast majority of those in need in our community seek only those benefits from the Department to which they are lawfully entitled''. In considering Mr Redlich's comments the Minister for Social Security will take particular care that any additional action that may be needed to counter abuses of the social security system does not infringe the privacy and the rights of honest pensioners and beneficiaries, who comprise the vast majority, nor harass them.

'Action to implement some of the recommendations was already in train prior to Mr Redlich's report being delivered. The Minister for Social Security announced on 6 September 1984 that the main method of social security payments will be through direct credit from January 1985; in other words, most social security beneficiaries would receive payment through their bank or other chosen financial institution. This change will assist social security clients and help eliminate social security fraud. The Minister for Social Security has set up a task force within his Department to report to him on follow-up action required after studying the relevant chapter of the Redlich Report.'


Under this heading Mr Redlich first propounds the view that there should be an increase in the scale and scope of resources available to the Director of Public Prosecutions, the Australian Federal Police as well as the investigative units of the Federal Department of Social Security and the Australian Taxation Office.

As to this, the Government has already seen the need to increase such resources . As I have said above the Budget allocation to the Director of Public Prosecutions for 1984-85 totals $8,694,000 and the Government firmly accepts that the Director must have adequate resources to carry out his tasks.

As to the AFP the following information has been provided by my colleague the Special Minister of State.

'The Government has provided significant increases to the AFP material and human resources. In 1983-84 funds appropriated for the AFP increased by nearly $ 9m (over 8%). 256 extra officers were employed of which 56% are engaged on investigative duties.

In 1984-85 funds to be appropriated for the AFP are to increase by $12m (over 10 per cent). 165 extra officers are to be employed. With the removal of the Protective Service component during October 1984, the staffing level of the AFP will be 2857. Of the 2409 police, 65 per cent will be engaged on investigative duties.

In both years, overseas postings for AFP increased very significantly.

As an example of the increasing resources being used co-operatively with the States, the police seconded to the Australian Bureau of Criminal Intelligence for all Australian police forces have increased from 13 to 23 under the present Government. The Commonwealth has provided 5 ADP staff-there were none previously .''

As to the Taxation Office, the Treasurer has provided the following information -

''This Government has already decided to provide substantial increases for the Taxation Office. In my Press Statement of 22 August I made it clear that in the current year the Taxation Office will be given, in addition to a staff increase of 313 to cope with greater workloads, a specific allocation of another 392 people for increased audit and information checking activities. My statement also acknowledged that the Government has agreed to planned additional staff increases in 1985-86 and 1986-87 to bring the annual audit coverage up to a figure of 1 per cent of business taxpayers by the end of that period. The aim of the Government is to provide sufficient resources to the Taxation Office to reach a 2 per cent audit coverage objective by 30 June 1992.

It can be said that this planned increase in staff over a number of years has the full support of the Commissioner of Taxation who fully recognises the resource difficulties that would obtain if far greater increases were given in a much shorter period. It should be well recognised that a planned approach of this nature takes into account the need for all the recruitment and training that must be undertaken to produce an effective taxation auditor.''

Mr Redlich next urges that State courts exercising Federal jurisdiction should be materially and directly assisted by the Commonwealth.

There is no question that State courts exercising Federal jurisdiction play a substantial part in the Federal criminal justice system and Federal criminal cases take up a significant portion of their time.

What Mr Redlich does not refer to however is that, since Federation, the States ' responsibility for their courts exercising Federal jurisdiction has been recompensed not by specific purpose payments but by general revenue assistance. The Treasury has pointed out that relative costs and disability factors influencing the costs of court administration, including the relative burden of Commonwealth prosecutions are taken into account by the Commonwealth Grants Commission in its reviews of State relativities. In the Treasury's view, if specific purposes assistance were provided in this area, this would clearly have consequences for the provision of general purpose funds to the States.

Nevertheless, I have made it clear that I am prepared to discuss these issues with my State counterparts and indeed I have already had discussions in this regard with the New South Wales Attorney-General.

As to Mr Redlich's reference to a recent Internal Management Review of the AFP and associated matters, my colleague, the Special Minister of State, has supplied the following information-

''following the Minister's approval the Commissioner established a Joint Management Review into the Australian Federal Police to review the use of resources and to make recommendations on ways in which resources could be optimised.

the review commenced on 9 January 1984 and was completed in April-it was the first such detailed and complete review done of the organisation since it was created in 1979.

the review produced two reports and made 124 substantial recommendations the majority of which have been accepted and are being implemented.

implementation is programmed for completion by 1 January 1985.

the recommendations are essentially a watershed in the development of the AFP and depart from the ''traditional police'' approach in the recruitment, selection, training, deployment and promotion of members. Their implementation will provide for the AFP to develop skilled police resources more quickly than in the past, optimise the use of other human resource skills (e.g. consultants, specialist staff) and enhance the ability of the AFP to respond to the requirements of Government.

the AFP's ability to recruit and absorb large staff increases will be greatly enhanced as a result of the implementation of the JMR's recommendations.

removal of the protective service functions will enhance management's capacity to make the most efficient use of resources.

specialised training in accountancy and corporate fraud is being provided.''

The Minister of State has also made the following general comments:

''the effect of increased resources and enhanced structures (NCA, DPP, review of criminal law, positive duty on all agencies to assist law enforcement) will not be felt overnight.

time is needed for the new agencies and structures to consolidate, establish their co-operative working arrangements and complete the long training lead- times.

the improved AFP career structure being implemented as a result of the JMR will reduce ''poaching'' by departmental investigative units. This is not considered a great problem at present in any case. The AFP is working closely with other Commonwealth agencies such as Health, Social Security and Telecom to produce a rational and cost-effective approach to law enforcement.

on the question of co-ordination with other regulatory bodies, the Government considers that there may often be advantages in having specialised or technical staff from a Department investigate certain regulatory offences up to a specified level, rather than involving expensive police resources early on.

As to statistics on criminal offences, these are being improved by joint efforts with the States through the Police Commissioners' Conference.''


My colleague the Minister for Communications has supplied the following information.

''Mr Redlich's observations regarding the Australian Telecommunications Commission (Telecom) are in the main a recapitulation of a chain of events which commenced shortly after he put before the Minister of Communications, Mr Duffy, information relating to alleged illegal activities by certain employees of Telecom.

This information formed the basis of a Review undertaken by Mr F. H. R. Vincent QC, in March this year. The report resulting from this Review was tabled in the House of Representatives on 7 September 1984.

The specific matters raised by Mr Redlich were rigorously examined by Mr Vincent who during the course of his review consulted among others, with Mr Redlich himself, the Chairman and senior management of Telecom, Federal and State representatives of various law enforcement agencies and persons who had been involved in investigations of organised crime and who had expressed views in relation to Telecom and organised crime.

I note that Mr Redlich (at paragraph 7.12 of his report) confirms that he has never had any evidence of the existence of widespread corruption within Telecom. Mr Redlich's observation in this regard certainly supports Mr Vincent's findings that perceptions of substantial corruption within Telecom were not supported by the evidence.

As to the alleged illegal activities of individual Telecom employees, Mr Vincent concluded that only a very small proportion of the cases involved substantial amounts of money or valuable property. This was not to suggest that the total cost to the organization may not be substantial, that the incidence of misappropriation or theft of a relatively minor nature is not more widespread or that there have not been major incidents which have gone undetected. Given all this, however, Mr Vincent said that there is nothing to suggest that there is in Telecom other than the level of criminal behaviour which must be anticipated in any large organisation with considerable stock and equipment and numerous outlets.

A statement detailing the Government's response to the Vincent Review has been made today in the House of Representatives by the Special Minister of State, Mr Young. That statement sets out several positive steps taken by the Government to address the recommendations in the Vincent report, which are, of course, directly relevant to Mr Redlich's observations.

It is unnecessary to re-state the action outlined by Mr Young in relation to the Vincent report. It can usefully be pointed out, however, that the Government has accepted the broad thrust of Mr Vincent's recommendations subject to further examination of particular recommendations.

Mr Vincent's findings in respect of the use to which subscriber call record printing (SCRP) machines should or could be put are somewhat at variance with Mr Redlich's recommendation that SCRP machines should be made lawfully available to police forces to help them detect the operational headquarters of various crime rings. Mr Vincent viewed the unfettered use of SCRP machines as quite unacceptable. He felt that a proper balance could be struck between the competing claims to privacy and the need for effective and efficient police investigation if the use of the machines was limited to the investigation of serious crimes and was strictly controlled. This included the requirement that such operations come within the warrant procedures under the Telecommunications (Interception) Act 1979 and the need for reports to Parliament by the Attorney- General. Mr Vincent was also of the opinion that Police should have access only to the information produced by the machines and not to the machines themselves.

In addition to the views of Mr Vincent and Mr Redlich on the use of SCRP machines, the Government must also take into account the views of the Australian Law Reform Commission on the SCRP issue, contained in its recent report on privacy. The Government is considering the several recommendations on the use of SCRP machines now before it, and will respond to this matter when dealing with the Australian Law Reform Commission Report on Privacy.

In relation to co-operation between the Australian Federal Police and Telecom, there has already been an extensive revision of the working arrangements between these two bodies, in accordance with Mr Vincent's recommendations, which will enable a greater involvement of the Australian Federal Police either independently or in conjunction with Telecom officers, in investigations of alleged illegal activity.

Telecom has also commenced a major review of its administrative procedures in line with Mr Vincent's recommendations. The Government is confident that the several steps outlined above will contribute significantly to the resolution of the matters Mr Redlich has raised.'


My colleague, the Treasurer has provided the following comments on the matters contained in this chapter.

'Most of the Special Prosecutor's recommendations in relation to banking and financial institutions are broadly similar to those made previously by Mr Costigan in his 5th Interim Report into the activities of the Federated Ship Painters and Dockers Union. These recommendations are under careful study by the Government. They raise significant issues for consideration in an area of the economy that has been the subject of far-reaching review in the context of the Report of the Australian Financial System Review Group (Martin Report) and is currently undergoing quite significant structural changes. The recommendations by Mr Redlich concerning the regulation of merchant banks and authorised foreign exchange dealers will also be carefully examined by the Government.'

In paragraphs 8.15 to 8.27, Mr Redlich illustrated difficulties he had encountered in obtaining evidence as to overseas banking records under the letter of request procedure.

He recommends that the Government should seek to negotiate adequate treaties with countries to ensure access by Australian law enforcement authorities to records of overseas banking institutions. The Government recognises the desirability of having such access but notes that there is likely to be special difficulty in negotiating arrangements that would enable access for the purpose of currency or revenue prosecutions. I shall take the matter up with the Minister for Foreign Affairs.


My colleague the Treasurer has supplied the following information in relation to the chapter.

'Mr Redlich has made a number of recommendations in relation to taxation matters.

He has suggested that there should be a review of the methods of ensuring compliance with the taxation system to overcome the wilful non-disclosure of income by criminals. The view of the Taxation Office has been that it is not so much a review of methods that is required as resources that would enable it to carry out this work. It notes that Mr Redlich acknowledges the difficulties in identifying the existence of some of these entities. It also notes that the increased resources that are to be provided to the Taxation Office in this and in future years will be of considerable assistance in this area.'

Mr Redlich has also recommended that there be a closer association between the Australian Taxation Office and police investigators. As to this, the Taxation Office has advised that it is well aware of the need to maintain a close liaison with the Federal Police during an investigation that is directed at prosecution action as well as civil remedies. At the present time, there are a number of cases involving both the income tax law and the sales tax law where there is close liaison between Taxation officers and Federal Police officers. In all these cases any taxation information relevant to the matter is made available to the Federal Police.

Mr Redlich has suggested that the secrecy provisions of the income tax law should be interpreted to ensure the free-flow of relevant information between members of the law enforcement agencies who are conducting investigations.

The Taxation Office has advised that it does not see the secrecy provisions of the law as in any way inhibiting it from providing taxation information to the Federal Police or to the Director of Public Prosecutions where the Taxation Office has a reasonable suspicion that a taxpayer has committed any taxation offences or criminal offences associated with the administration of the taxation laws. In fact, it has already entered into working arrangements with the Director of Public Prosecutions along these lines.

Mr Redlich has suggested that the Taxation Office should take positive action to raise default assessments against criminals rather than go through the lengthy procedure of attempting to carry out a full investigation to determine the level of omitted income.

There have been many occasions where the Taxation Office has been forced to raise default assessments against taxpayers who are not prepared to disclose income and this has been done in the criminal area and in other areas. At the same time, the Taxation Office must be always aware of the need to defend any assessment that it raises and it is certainly not an answer to say that the law puts the burden on the taxpayer of proving the assessment to be excessive. In addition, the Taxation Office does not want to act in a way that could be seen as an abuse of power.

As to the recommendation that the Taxation Office should direct its investigative resources towards the location of assets and towards adopting timely assessment procedures, the Taxation Office has indicated that it is well aware of the need to do these things. This is a normal part of the procedures taken in any of these cases.

Mr Redlich has also made a number of recommendations relating to Taxation Boards of Review. These recommendations have as their aim the more expeditious hearing of references to the Boards, increased flexibility in the operation of the Boards and the discouragement of taxpayers seeking references to a Board in order to delay the final resolution of their dispute or to generally inconvenience the Taxation Office.

Of the six recommendations made in this area, four would require, either in whole or in part, amendments to the present law and, as to this, the Government already has under consideration a substantial report by the Administrative Review Council in respect of Taxation Boards of Review. This report was tabled in Parliament last year and most of the recommendations made by Mr Redlich would come within the compass of the examination of that report that is presently taking place.

Of the two recommendations that do not require any amendment to the existing law, one is that the boards of review adopt call-over procedures to encourage taxpayers to agree to an early hearing of their dispute or to abandon that dispute. As to this, the boards of review have already adopted this practice and it is achieving worthwhile results.

The other recommendation that does not require an amendment, notwithstanding Mr Redlich's view that an amendment is required, concerns the power of a board of review to give priority to the hearing of demonstrably urgent cases. Income tax regulation 37 provides that references to a board of review shall be dealt with by a board in the order in which they are received unless the Chairman otherwise directs. Accordingly, it is within the power of a chairman to achieve the result sought by Mr Redlich and there have been occasions where the Chairman has exercised this power.

Mr Redlich has also recommended that the Income Tax Assessment Act be amended to provide for increased penalties for breaches of the taxation law. Notwithstanding this recommendation, it is noted that Mr Redlich acknowledges that he is aware that legislation is being drafted to do just this and assumes that these amendments are a response to recommendations that he made in his 1982 -83 report.

The facts are that following an extensive review of taxation penalties by the Taxation Office, in association with the Attorney-General's Department, amendments to the penalty provisions of the taxation laws were agreed to by the Government some time ago and certainly this process was well in train before Mr Redlich presented his 1982-83 report.

This matter was referred to in the 1984-85 Budget Statements and I will be introducing a Bill proposing significant increases in the penalty provisions of the taxation laws in the very near future.

While on this subject, reference should also be made to another recommendation of Mr Redlich that section 221YHD of the income tax law be amended to provide for the summary hearing of prosecutions in appropriate cases. This section provides for certain penalties where persons do not comply with certain requirements of the new prescribed payments system. Mr Redlich makes the point that under the present law offences under this section are indictable and accordingly must be prosecuted by way of a committal hearing and subsequent trial, thus imposing a significant workload on investigating police, prosecutors and the court. He suggests that there should be flexibility to allow for summary disposition of the majority of offences under the prescribed payments system.

As already indicated, the penalty provisions of the income tax law have been extensively reviewed and, while the results of that review will have to await the introduction of legislation by me, it can be said that the question of whether certain offences should be dealt with as indictable or summary offences has been addressed as part of this review.''


I discussed this portion of the report very fully in my answer to Senator Robert Ray in the Senate on 7 September 1984, see Hansard pages 670-671.


As this chapter indicates, with my approval and the assistance of my Department , an effective information processing system was established in the Office of the Special Prosecutor and this system is now being used by the Director of Public Prosecutions. To this end, funds totalling $388,643 were made available by the Government.


In this chapter Mr Redlich described advisory work conducted by his office and makes a number of recommendations for changes in the law. I should briefly comment on those recommendations.

Proposal to amend section 212 of the Customs Act 1901 to permit an arrested person to be held for a limited period for questioning before he is charged.

This raises one of the central issues that will be dealt with in my forthcoming review of the Criminal Investigation Bill.

Proposal to introduce legislation of general application to ensure that a prisoner serving a sentence in an overseas country can be brought to give evidence in a criminal trial and then be returned to that overseas country to complete their sentence

Mr Redlich's account of this matter does not disclose that, following his representations, urgent action was put in train to obtain the necessary legislation but the immediate need disappeared when the prospective witness withheld his consent to the arrangements for travel and giving evidence.

The proposal for future general legislation appears to have merit but, because the States have a marked interest in the matter (a prospective witness is at least as likely to be required for trial of a State offence as for trial of a Commonwealth offence and would, in any event, need to be held in a State prison) , I propose to raise the matter in the Standing Committee of Attorneys-General.

Clearly this proposal will require arrangements with other countries and I, therefore, propose to raise the desirability of treaty arrangements to this effect in the next Commonwealth Law Ministers Meeting in 1985. I shall ask the Minister for Foreign Affairs to raise the matter on appropriate occasions with other countries.

Proposal that the requirement of 'materiality' be removed from the perjury offences created under the Crimes Act 1914 and the Royal Commissions Act 1902.

On Mr Redlich's own account, deletion of the requirement of 'materiality' will not significantly affect the operation of these Acts. I shall ask Mr Justice Watson to give his attention to this suggestion in the course of his review of the Commonwealth Criminal Law.

Proposal that legislation be introduced at both State and Federal levels to provide for State courts to exercise simultaneously Federal and State jurisdiction.

Mr Redlich's concern, as I understand it, is that a court should be able to deal with Commonwealth and State criminal charges on the one indictment.

I understand that in some States this is already possible but there are difficulties in other States by reason of the terms of State law. However, I have asked my Department to report to me urgently on this suggestion.

Proposal that the Telecommunications (Interception) Act 1979 be amended to permit a record of a lawfully intercepted conversation to be introduced in evidence by means of a certificate.

My Department has under consideration a similar proposal and I shall shortly be making a submission to Cabinet on the matter.

Proposal that the Telecommunications (Interception) Act 1979 be amended to permit the release of intercepted information to persons concerned with a prosecution of an offence of which the Commissioner has previously released the information.

Apparently, Mr Redlich's proposal is that, to remove any doubt, the Act should explicitly state that a prosecutor, in preparing for a particular case, should have access to intercepted information that the Commissioner of the AFP. has communicated under paragraph 7 (5) (b) of the Telecommunications (Interception) Act 1979 to a police officer for the purpose of investigating the offence involved in that case. My Department has already advised that, by necessary implication, communication to the prosecutor is lawful. However, Mr Redlich's suggestion can be implemented when the Act is next amended.

Proposal that Section 10 of the Crimes Act be amended to provide a procedure to deal with disputed claims for legal professional privilege.

This matter will be dealt with in my coming review of the Criminal Investigation Bill.

Proposal that interpreters properly trained and familiar with police procedures be available to assist the AFP in the conduct of interviews.

My colleague the Special Minister of State has supplied the following information.

'The AFP presently uses the services of interpreters supplied by the Department of Immigration and Ethnic Affairs and other officially recognised agencies. The new recruitment opportunities and structural flexibility being opened up as the JMR's recommendations are implemented will make available to the AFP full-time interpreters, along with many other specialists.'

The Criminal Investigation Bill will regulate the provision of interpreters when persons not fluent in the English language are interviewed by the police.

Proposal that the Attorney-General determine whether the due administration of criminal justice requires that a committal proceedings or a decision by a Minister to consent to the institution of a prosecution should be reviewable under the Administrative Decision (Judicial Review) Act 1977.

The Administrative Review Council is, at my request, undertaking a complete review of the operation of the AD (JR) Act 1977. The Council has been asked to pay particular attention to the question whether committal proceedings and decisions to consent to the institution of prosecutions should be reviewable under the Act. It is noted that the exclusion from that Act of decisions in the course of committal proceedings in State courts may have the effect of reviving the review jurisdiction of State Supreme Courts now excluded by section 9 of the Act.

Proposal that the Evidence Act be amended to allow for certification of transcripts of evidence before Federal courts or tribunals and their admission into evidence of such transcripts as prima facie evidence of their contents.

I have asked my Department to provide a report on Mr Redlich's proposal and on alternative procedures to achieve the same general result. Care will need to be taken to ensure that an unreasonable burden of proof is not imposed on defendants in criminal proceedings.

Proposal that a standard letter of request procedure be introduced applicable to all Commonwealth litigation and this should expressly permit applications to be made ex parte by the prosecution.

The matter of obtaining evidence from overseas is at present before the Standing Committee. I shall ensure that the review extends to the matters raised by Mr Redlich.


It should be noted that the Government provided staff totalling 63 to Mr Redlich and funds to the extent of $2,557,500 were provided for his activities for the year 1983-84.

I am particularly pleased to note that Mr Redlich refers to a smooth transition from his Office to the Office of the Director of Public Prosecutions.

Senator GARETH EVANS —In conclusion, further attention needs to be given to a number of matters raised by Mr Redlich. As regards matters within the responsibility of my Department, I have arranged for the establishment of a task force to report to me at the end of one month on how these remaining matters are dealt with and how Mr Redlich's report has been implemented to the extent appropriate. Matters within the responsibility of other Ministers have been drawn to their attention and I am sure that they will be taking like action. The Government is grateful for the effective and energetic manner in which Mr Redlich carried his responsibilities.

I also seek leave to incorporate in Hansard a letter dated 10 September 1984 which was sent to me from the Director of Public Prosecutions, Mr Temby, and which is referred to in the body of the statement and in fact forms part of it.

Leave granted.

The letter read as follows-

10 September 1984

Senator The Honourable Gareth Evans,


Parliament House,

Canberra, A.C.T. 2600

Dear Attorney,

I refer to your letter dated 7 September 1984 in which you have sought my urgent comments on those recommendations in Mr Redlich's Report which concern the Director of Public Prosecutions.

I note that the Report was tabled in Parliament on Friday 7 September 1984 and I understand that the Government proposes to provide its immediate response to the Report in the near future. You will appreciate that, having regard to the short period of time I have had to consider the Report, it is not possible for me to provide you at this stage with a detailed response on all the recommendations Mr Redlich has made which concern this Office.

There are, however, a number of matters dealt with in the Report which have been under consideration within the Office for some time. On those matters the views Mr Redlich has expressed and the recommendations he has made merely confirm some of the preliminary views I have reached.

Civil Remedies

Pre-eminent amongst those matters are the restrictions on my function under the Director of Public Prosecutions Act 1983 to take civil remedy action. Having regard to the nature of my Office, I consider that we are uniquely placed to take effective civil remedy action in conjunction with prosecution functions in order to deprive ''the criminal of the proceeds of his illegal activity''. However, my effectiveness in this area is, and will continue to be, severely circumscribed so long as my function to take civil remedy action is limited by the requirement that a prosecution has been instituted. In this regard, you may be aware that your Department disagrees with a view we have expressed that paragraph 6 (1) (n) of the Act would enable me to exercise my civil remedy function prior to the actual institution of a prosecution. Whilst I have no firm view on the matter the wording of 6 (1) (h) could be said to be ambiguous. The experience of Special Prosecutor Redlich indicates that the necessity to take civil remedy action must be pursued prior to the actual institution of the relevant prosecution if the action is to be successful. Thus if the present limitation of my function as set out in paragraph 6 (1) (h) is maintained the power will be virtually useless.

In my opinion it is no answer to say that the Australian Government Solicitor may take civil remedy action in circumstances where I am precluded from doing so . The A.G.S. has no authority to take such action in the absence of instructions from the authority concerned. Further, for the A.G.S. to take such action would in many instances effectively involve two separate organisations dealing with the same material from the very outset. The experience of the Special Prosecutor 's Office has shown the advantages of the one organisation being in a position to initiate both prosecution action and/or civil remedy action.

I accordingly support Mr Redlich's recommendation for the removal of the requirement that my civil remedy function be connected with a prosecution that has been instituted.

Further, if the Act were to be amended to provide this Office with the wider civil remedy function recommended, then I consider that the existing requirement that my civil remedy function may be only exercised in respect of those matters which are specified in an instrument under sub-section 6 (3) of the Act should be removed, as has been recommended by Mr Redlich. Whatever was the justification for that requirement in the existing Act, it seems to me that it would be unnecessarily restrictive to retain it in conjunction with the wider civil remedy function recommended.

If we have the function sought, it is intended that this Office will in the actual conduct of proceedings work through the A.G.S.

Pecuniary Penalties

In respect of the function under paragraph 6 (1) (g) of the Act to take action for the recovery of pecuniary penalties, Mr Redlich has recommended that the Director of Public Prosecutions should have the function of instituting pecuniary penalties in respect of all matters complementary to current investigations or prosecutions under his control. That recommendation generally accords with my own view of the matter. As a matter of principle I consider that the role of the DPP should be to administer the enforcement of all provisions of Commonwealth Acts which create offences, however described, irrespective of whether the means of enforcement is by prosecutions or by proceedings to recover a pecuniary penalty. A large number of pecuniary penalties are essentially indistinguishable from provisions of other Acts which create offences.

Committal Proceedings etc.

In his report Mr Redlich has recommended that you ''determine'' whether the due administration of criminal justice requires that a committal proceeding or a decision by a Minister to consent to the institution of a prosecution should be reviewable under the Administrative Decisions (Judicial Review) Act''. My Office has recently provided a written submission to the Administrative Review Council in which the view has been expressed that the more appropriate forum for the review of decisions of committing magistrates is the Supreme Court of the State or Territory in which the offence may be tried and that the jurisdiction of the State Supreme Courts prior to the AD (JR) Act to review such decisions should be returned to them. The view was also expressed that the appropriateness of decisions relating to the administration of criminal justice being reviewable under the AD (JR) Act should be reconsidered.

As I have indicated above I hope to provide you with a detailed response on the Report in due course of time. In this regard, while many of the recommendations do not directly concern my powers and functions under the DPP Act, nevertheless they are of interest to this Office. I make particular mention of resources and the power to issue directions and guidelines. As to the former, it is too early to express a concluded view but the strong likelihood is that resources presently available will prove to be somewhat inadequate to perform the present DPP functions, and the position will be exacerbated by the advent of the National Crimes Authority. As to the latter, more extensive powers may well be necessary, but it is again too early to say. The further submission will also deal with recommendations 7, 8 and 9 of Chapter 5; 6 of Chapter 7; 5 and 6 of Chapter 8 and 1, 5, 7 and 11 of Chapter 12.

Yours faithfully,


Senator GARETH EVANS —Since this statement is a response to a report, I formally table it. I move:

That the Senate take note of the statement.

Debate (on motion by Senator Collard) adjourned.