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Monday, 23 September 2002
Page: 4647

Senator HARRIS (4:49 PM) —Probably the most severe critique of the entire Proceeds of Crime Bill 2002 comes from the New South Wales Bar Association in their submission to one of the Senate committees, in which they set out to a large degree their reasons for opposing the legislation. The areas that they are concerned with go from the actual definitions right through to the examination provisions—for example, the definition of `approved examiner' and the issue of the obligation to produce documents and answer questions. For clarity, I will read from the New South Wales Criminal Bar Association submission:

From the definition of “suspect” it is clear that persons who may at the relevant time be the subject of investigation for criminal offences, although not charged, can be the focus of litigation conducted under the Bill. This is fundamentally different from the current Act where, before any restraining order can be obtained against a person who was not charged at the time of the application, the Court had to be satisfied that the person would be charged within 48 hours. Similarly, a person is required to be convicted of a relevant Commonwealth offence before any of their property is forfeited or a Pecuniary Penalty Order is made against them. No such conditions apply under the Bill; indeed it is clear that the Bill intends to include in its net persons who are not charged and may currently be the subject of a criminal investigation. The Draft Guidelines issued by the Attorney concerning examinations to be conducted under the Bill's provisions recognise this.

Under the examination provisions—and this is exactly the area that the Democrats amendments refer to—the submission says:

An examination order under the Bill, therefore, permits any person to be examined about the affairs of “suspects”, which clearly includes persons not yet charged with any relevant offence. “Affairs” is not defined in the Bill, but in the past has been given a wide interpretation by Courts in this statutory context. Clearly the scope of the examination of “suspects” is wide and their “affairs” may, in certain circumstances, include incriminating conduct.

They go on further to say:

Under the existing Proceeds of Crime Act 1987, examinations in NSW are conducted before Supreme Court Registrars ...

I will briefly stop quoting from their submission to highlight the differences. When we actually go to the legislation and look at clause 183, under division 2, an approved examiner is defined as:

... a person who:

(a) holds an office, or is included in a class of people, specified in the regulations; or

(b) is appointed by the Minister under this section.

So under the New South Wales civil forfeiture legislation an examination has to be conducted before a Supreme Court registrar, but this legislation leaves it wide open in that the minister can appoint a person. There is no definition and there are no criteria. It says under proposed subsection 4(a) `holds an office'. It does not set out what the office is; it does not clarify it at all. The proposed subsection goes on to say `or is included in a class of people specified in the regulations'. I will look forward to the minister's clarification of the scope of the minister's power to appoint an examiner and the `class of people' that will be specified in the regulations. I quote again from the New South Wales Bar Association submission, where they have clearly set out the criteria under which the New South Wales civil forfeiture process is actually carried out:

That approach ensures—

that is, the New South Wales approach—

that an impartial judicial officer controls the conduct of the examination. Registrars on occasions refer questions of law to the duty judge for resolution if needed. The creation of someone called an “approved examiner” to in effect oversee the examination, given the provisions in the Bill, takes away the Court's control of the examination which it has ordered. It also, given the power given to the approved examiner to examine the examinee, clearly reduces the independence from the investigation and prosecution of the person overseeing the examination. When regard is had to the use that can be made of material provided at an examination, it is not appropriate that control of that process be vested in someone who is not an officer of the Court that ordered the examination.

A flow chart was provided to us in one of the committee hearings. It shows the sections dealing with the process of a criminal investigation. They start, under `Restraining Orders', with sections 17, 18, 19 and 20. Section 174 shows:

Examination orders to facilitate the enforcement of the PoC Act.

Then we have:

Examination conducted about the affairs (including location and nature of property) of the person.

That is not restricted to the person who is under investigation. It could be a person who is part owner of a strata title property. I am not referring to an adjacent property; I am referring to a person who is part owner of a strata title property that the suspect may also have an interest in. Under this legislation I believe that person can be brought in for an examination. They lose their right to remain silent. Under the government's proposed legislation, they have to answer. On the flow chart, we then move on to the use of the material. According to the flow chart:

Subject to any court ruling or direction to the contrary—

under section 192—

Answers given, or documents provided, are not admissible in evidence except in the following:

ยท Proceedings for giving false/misleading information

ยท Proceedings on application under the Act ...

I put a question to the minister: what areas under the act does that refer to? That is an extremely wide statement that has been made in relation to the examination flow chart. We go back again to the New South Wales Bar Association submission and look further at the issues that they are raising:

The attempt in the Bill to set out the rights of lawyers appearing for examinees is welcome as the current position is rather uncertain. However, the Bill does not specifically provide for the lawyer to take objection to questions asked on the basis that they are beyond the scope of the examination order, or unfair, or misleading or to raise any other proper basis for the examinee not being required to answer the question. If there is to be a provision defining the role of an examinee's lawyer at an examination it should comprehensively address the issue so that there is no argument concerning what can and can't be done during the hearing.

They continue under the heading `Obligations to produce documents and answer questions':

Clause 188(1) of the Bill provides that it is a criminal offence for the examinee, inter alia, to:

(b) refuse or fail to answer a question that the *approved examiner requires the person to answer; or

(c) refuse or fail to produce at the examination a document specified in the *examination notice that required the person's attendance

The role of Legal Professional Privilege and the Privilege Against Self Incrimination are substantially eroded under the Bill. This occurs by virtue of clauses 189 and 190 which are set out in full below.

So we have the New South Wales Bar Association very clearly saying that this legislation is lacking in its clarity as to the duties of the lawyer who can be in attendance during the examination. They go on to very clearly say that a person's privilege against self-incrimination is eroded by the bill. Subsequently, they also raise issues relating to the government's ability under section 51, subsection 31—that is, for the Commonwealth to acquire property otherwise on just terms. They further comment insofar as the bill provides for confiscation of property without a criminal conviction, and this is visiting a penalty even greater than most criminal provisions apply in their monetary penalty. This also seems to run counter to both the spirit and the letter of section 80 of the Constitution—providing the right for a jury trial in respect of offences against the Commonwealth.

So our Australian Constitution sets out very clearly in section 80 that, as an Australian citizen, we have the right to request a trial by jury, yet here we have a piece of Commonwealth legislation that in its intent clearly appears to take away that constitutional right. It is going to be quite interesting to see the challenges facing the government and the appeals that the government are going to find themselves embroiled in as a result of taking away these rights from the Australian people.