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Tuesday, 23 August 1994
Page: 80

Senator SPINDLER (6.06 p.m.) —The Senate is dealing with the Witness Protection Bill 1994. The Australian Democrats favour the main thrust of the bill. However, as indicated in my dissenting statement in report of the Senate Standing Committee on Legal and Constitutional Affairs, I am concerned that the bill does not meet benchmark standards in some areas.

  The first and foremost issue would be witness reliability. As the bill presently stands, the commissioner is not expressly required to consider the likely reliability of the evidence to be given by the potential witness as a matter which is relevant to the decision as to whether the person should be admitted to the program.  It seems to me that this is the prime consideration for the commissioner when he makes that decision. We want to ensure that this sort of decision is not made lightly.

  There has been some criticism of the practices adopted in this area and of a previous decision. It was the central criticism made by the Joint Committee on the National Crime Authority in its report The NCA and James McCartney Anderson. The criticism was: given Anderson's background, his own criminality and his suspect credibility and motivation, why was he given protection in the first place, given that it gave him de facto immunity from prosecution? I believe it is essential that the bill impose very explicitly the obligation on the commissioner to safeguard the public interest by measuring the benefits that could be obtained from giving protection to a witness against the public interest.

  The other area which gives us some concern is the area of fulfilling financial commitments. It is notorious that witness protection programs have been manipulated by participants to avoid existing financial obligations to the detriment of creditors and others. I note that the Joint Committee on the National Crime Authority was conscious of this and recommended that any legislation in this area should contain sufficient protection, without specifying what those provisions might be.

  It is, however, the view of the Australian Democrats that the bill does not go far enough in protecting the rights of those who are creditors of the witness or who may have other orders, such as maintenance orders, against the witness. In respect of civil debts, I note that the comparable United States scheme makes elaborate provision for creditors to enforce their rights.

  The next area I wish to draw to the Senate's attention is the area of inter-agency cooperation. We are somewhat surprised that the opportunity has not been taken in this bill to require some formality in the various informal arrangements, which currently are in operation, which allow the commissioner to obtain false documents necessary to establish new identities. We are concerned to ensure that the arrangements by which new identities are established are subject to ministerial supervision.

  It is clear that, when the bill is quiet on this aspect, it condones the current practice where these matters are arranged between the commissioner and relevant departments on a nudge and a wink basis. But it seems to us for the protection of the process, for the protection of the departments providing the necessary documentation and for the protection of the commissioner, that such arrangements must be recorded, must have some formality and must be able to be referred to if they are challenged.

  The other area in the bill as it stands that I would question is the fact that it makes no provision specifically to protect the interests of children and of custodial and non-custodial parents in child custody arrangements. It is, I believe, important that the bill specifically protect the interests of these parties and, in particular, of course, the welfare of children, when we are talking about giving protection to witnesses who may be exposed to obligations in this area. Again I note that the United States bill makes quite elaborate provisions in respect of child custody arrangements. The bill that is now before the Senate is silent on the subject.

  Related to the matter that I raised in the first part of my speech—that is, the public interest and the weighing off between the public interest of protecting the community and getting value, if you like, in respect of the immunity that is being extended to a protected witness—is consideration of the danger that is present in the relocation process. The bill does not require the commissioner to have regard to interests of public safety when considering, amongst other things, the reasons why a witness should be relocated. The US legislation, once again, makes such provision. I wonder why the drafters of this bill, the Attorney-General (Mr Lavarch) and the Minister for Justice (Mr Kerr), have not turned their minds to this particular area. It would seem to us that it is in the public interest to have such a requirement included.

  The other area that causes us some concern is that, as it stands, the legislation will not provide for disclosure of the nature of the memorandum which states the circumstances of the relocation and the protection extended to the witness, even in a courtroom context. The nature of the memorandum is not to be disclosed, full stop. How then will it be possible in cross-examination to test the suggestion that testimony has been bought? The response that clause 5 states that inclusion of a witness in the program is not to be done as a reward or as encouragement for giving evidence is, I believe, not a sufficient answer. The circumstances and the details of the memorandum should be available to be tested in court.

  The suggestion that clause 5 is sufficient assumes that, just because the bill says it should not be done, it will not be done. What is required, however, is that it can be tested in court subsequently. As his Honour Mr Justice Frank Vincent suggested in his submission to the Victorian legal and constitutional committee in its review of the operation of the Victorian act, in some cases it will be necessary for the general nature of the memorandum to be disclosed so that this issue can be explored in cross-examination. Yet the bill currently before the Senate does not make any reference to it.

  There is a need to ensure that, if a witness is given protection and provided with relocation and a new identity, the community, as it were, receives some value for that concession. We are concerned that the bill does not proscribe the inclusion of clauses in the memorandum of understanding that threaten consequences if the witness does not give evidence in the contemplated form. The Democrats would have no concerns in this regard if it is the wish of the authorities to make indemnities from prosecution contingent on giving the right evidence. Indemnities can be given by the DPP and can be cross-examined upon. If a person gets a lower sentence on the promise of giving evidence in the right form, that too can be subject to cross-examination. However, the secrecy of the memorandum of understanding should not be exploited to hide such deals, and I believe this matter needs to be addressed.

  Finally, the bill provides no mechanisms to enable the minister to be kept informed of the operation of the act and to allow for reporting to parliament. The reporting aspect that I believe is required should be based on the statements by the NCA and the Inspector-General of Intelligence and Security, who have both said that ministerial supervision is essential if schemes such as this are to be kept on the rails.   I have set out the concerns that the Democrats have in relation to this bill. As I said, while we support the general thrust of the bill, which is long overdue—and we must regulate this activity—we have concerns that these matters have not been addressed. I will be moving amendments in respect of those concerns during the committee stage of the bill.