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Monday, 18 November 2002
Page: 6655

Senator LUDWIG (9:14 PM) —The Australian Crime Commission Establishment Bill 2002 will radically overhaul the National Crime Authority to form a new agency. The model proposed in this bill for the ACC, as I suspect it will be known, raises fundamental points of principle for the Labor Party. Before I discuss these principles, and Labor's proposals for dealing with the problems we see in the model, it will be useful to remind ourselves of the history behind this bill and the government's push to dismantle the NCA. In the run-up to last November's election, the government gave a commitment to hold a special leaders summit to deal with the issues of transnational crime and terrorism. The Prime Minister said that the summit would look at `options for reforming or replacing the National Crime Authority to ensure we have a national body fully equipped to deal with future transnational criminal activities'.

Even in the context of September 11, the government's announcement came as something of a surprise, given the praise that had been poured on the NCA by the Prime Minister and successive ministers for justice and customs. For example, in a press release issued on 22 February last year, the Minister for Justice and Customs, Senator Ellison, had this to say about the NCA:

The cooperative efforts of law enforcement agencies such as the National Crime Authority, Customs and the AFP has never been so high ...

He went on to commend `the excellent work that these world class law enforcement agencies are doing'.

Ten months later, in December 2001, it was a very different story: the NCA was marked for the chop. The first step in the process of killing off the NCA was predictable: the government commissioned a review. That review was carried out by a former Commissioner of the Australian Federal Police, Mr Mick Palmer, and a former Secretary of the Attorney-General's Department, Mr Tony Blunn. Their report to cabinet has never been made public, although it formed the basis for the Prime Minister's claims at the leaders summit on 5 April this year that an overhaul of the NCA was in order. A heavily sanitised version was handed over to the Senate Legal and Constitutional Legislation Committee in late May. Again, it sheds no light on the need for restructuring of the NCA.

This failure to explain the rationale for change or to make public the Palmer-Blunn report suggests there are other reasons for the government's move against the NCA. We know that the Prime Minister was not happy with comments made by the former chair of the NCA, Mr Gary Crooke QC, that were critical of the Prime Minister's approach to drug control. Mr Crooke also favoured heroin trials, in contradiction to the government's official policy. We also know that some members of the government were unhappy with the NCA's pursuit of Mr John Elliott. However, as my colleague the shadow minister for justice and customs acknowledged in the House last week, there are legitimate concerns about the mechanism for referring matters to the NCA for investigation, which can be cumbersome and time consuming. Labor also acknowledges that there is always a case for looking afresh at institutions to ensure the maximum effort is made to combat organised crime.

It is in the light of these legitimate concerns that the Labor Party are prepared to support this bill, subject to amendments which I will speak about later. Labor are serious about fighting crime, but Labor are also serious about upholding important principles of responsibility and accountability within our parliamentary system of government. That is why we seek amendments to this bill that are designed to support important principles that informed the establishment and operation of the NCA in the first place. Two particular areas of the bill cause concern for Labor: the first area is the proposed governance structure and the second is the system that enables the use of coercive powers.

Our concerns were shared by the expert witnesses who appeared before the recent inquiry into this bill conducted by the Parliamentary Joint Committee on the National Crime Authority. That joint committee tabled its report to parliament out of session on 6 November. It made 15 recommendations in total to amend the legislation, while a majority of the Labor members made an additional three recommendations. I join with the shadow minister in congratulating the committee on its hard work. The report is long and I suspect it was difficult, especially given the short time allowed by the government to report back to parliament, but the committee managed to get it together.

The government last week accepted 13 of the 15 unanimous recommendations of the joint committee and has given reasons for its refusal to accept the other two. Labor welcome the government's acceptance of those recommendations, and we believe they will improve the operation of the ACC. We accept the government's reasoning for not accepting the other two recommendations. Last week, the government introduced a range of amendments in response to the PJC recommendations. I stress that the recommendations in the PJC report, which are supported by Labor, are about improving the model for a new Australian Crime Commission. Not only will these amendments ensure a streamlined and effective process for approving the use of the coercive powers but also they will safeguard the principles of responsible government and ensure ministerial accountability for the special powers.

In particular, we support amendments that will make the CEO responsible for the overall management of the ACC and will ensure that the Minister for Justice and Customs is accountable to the parliament for the work of the Australian Crime Commission. We also support amendments to ensure that the CEO appoints the head of a task force after consultation with, and advice from, the board. The heads of task forces will be responsible to the ACC through the CEO. We also support amendments to ensure that the suspension of the CEO can only take place on the initiative of the minister after consulting the full board and that the removal of the CEO for unsatisfactory performance will be a `for cause' provision, attracting general administrative law protections.

Other amendments will achieve the following objectives: ensure that complaints against all staff of the ACC may be investigated by the Commonwealth Ombudsman as a minimum; oblige the government, once the ACC has been established, to give urgent attention to ensuring that operational, investigative and support staff work under the same integrity and complaints regime; ensure that the ACC is obliged to provide the parliamentary committee oversighting its operations with any information sought by the committee, except where that information would identify any particular individual suspected of criminal conduct—unless the matter is already in the public domain—or would, in the opinion of the CEO, risk prejudicing a current inquiry; ensure there is no blanket immunity from suit for the ACC; ensure a committee of the board does not have the power to authorise an operation, an investigation as a special operation or an investigation which would in turn enliven the special powers; provide that no part-time examiners can be engaged on a per hour or per diem basis; require examiners to satisfy themselves in each case before they exercise special powers under the act that it is appropriate and reasonable to do so and that they indicate in writing the grounds for having such an opinion; and, lastly, provide for a comprehensive public review of the Australian Crime Commission Act to take place after three years have elapsed from the date of its commencement.

Just touching on the special powers, Labor also supported the additional three recommendations made by the majority of Labor parliamentary joint committee members, which related to the system for approving the exercise of coercive powers. A defining feature of the NCA is that it holds coercive powers similar to those of a royal commission. These are the powers to obtain documents and other evidence and to summons a person to appear at a hearing to give evidence under oath. As it now stands, these coercive powers can be exercised in only very defined circumstances, with ultimate accountability lying with the intergovernmental committee made up of the various ministers.

At the time the NCA was set up, there was extensive debate about the nature of these coercive powers and recognition of the fact that no government would allow them to be solely in the hands of a police force or, for that matter, bureaucrats. That is why the architect of the National Crime Authority devised the references system whereby the ministerial level IGC refers matters to the NCA for investigation. Under the proposed new model for the Australian Crime Commission, the board—and remember that it is made up of state police commissioners and bureaucrats—will not only determine priorities for the organisation but also have the power to press the green button, so to speak, to use coercive powers. The board can also approve the use of the powers for the purpose of intelligence gathering—a move away from the investigative focus of the NCA. Under the original model in the bill that was introduced into the House on 6 September, the board could delegate the decision on the use of these powers to a subcommittee as long as the committee was made up of at least two Commonwealth members. That situation has changed following the amendments introduced by the government last week which remove the capacity of the committee to authorise a special investigation or operation—that is, an investigation or operation involving the use of the special powers.

Overall, the new model is a major departure from the current regime, where special powers may be exercised only after a matter has been referred to the National Crime Authority by the intergovernmental committee. It is also contrary to the views of the police themselves, who admit it is not appropriate for them to hold the coercive powers. The Commissioner of the Australian Federal Police, Mr Mick Keelty—who, ironically, will chair the board under the proposed new model—told the Senate Legal and Constitutional References Committee on 15 March 2001:

The AFP enjoys a close strategic partnership with the NCA.

He went on to say:

The AFP believes it is appropriate for the NCA to exist as an independent agency. It is inappropriate for any police organisation to have the special powers conferred upon the NCA.

In evidence given to the Parliamentary Joint Committee on the National Crime Authority on 2 April 2001, the commissioner stated:

In response to that article—

an article that appeared in the Canberra Times

I wrote a letter to the editor in which I expressed in clear terms that the relationship between the AFP and the NCA had never been better and that we enjoyed a number of recent successes in targeting organised crime groups. I would like to reiterate those comments to the committee today ... I repeat that it would not be appropriate to vest those powers into a police agency ...

Mr Keelty's comments highlight that the new model departs significantly from the very basic principles of responsible government. This departure is a concern for the federal Labor Party. It was also clearly a concern for the majority of the Labor members of the parliamentary joint committee who made their additional three recommendations in the committee's report. In supporting these recommendations, we acknowledge that this bill is the product of negotiations between the federal government and the Labor governments in the states and territories. But the additional recommendations are within the boundaries of the original agreements between the various governments aimed at streamlining the operation of the ACC.

It might be worth while to cite a letter by Mr Bob Bottom, who gave evidence to the parliamentary joint committee. It is instructive to read a couple of paragraphs from that letter in support of the position. The letter to Senator Ellison, which is dated 14 November 2002, reads:

Therefore Bruce Ballantine-Jones and I firmly believe that whilst it would not be inappropriate to still provide for the Board to initiate and approve special investigations/operations that may involve use of coercive powers, there should be no objection to a residual referral and/or veto power that may be exercised by a unanimous or majority vote of the Inter-Governmental Committee. Such a provision would satisfy the fundamental concern of the nation's law bodies.

The letter went on to say:

If police commissioners or other board members cannot live with this, their very objection would only serve to reinforce the necessity of such accountability through the IGC as well as yourself as Minister. I am credited with forcing 18 Royal Commissions and judicial and parliamentary inquiries in past years and a significant number resulted from failings of police commissioners to do their job.

The letter concluded:

With agreement in the air, I was pleased to be able to make the following comment yesterday in another email to the Shadow Minister, the Hon Daryl Melham: `Having observed, or been directly or indirectly involved in just about every parliamentary development in dealing with organised crime and corruption over some decades, I cannot recall a more classic example of true federalism at work with the Commonwealth parliament working so genuinelyin a bi-partisan fashion ...

That demonstrates that there is a need for this position—and clearly it is within the ability of this government to accede to that position.

The shadow minister told the House last week that he understood the government would also introduce amendments to address these additional concerns. Labor have not yet seen the government's proposed further amendments, but we have agreed in principle on what those amendments are designed to achieve, especially the insertion of an appropriate level of ministerial accountability through the intergovernmental committee in relation to the exercise of coercive powers. As I understand it, final drafting is still taking place. I imagine the drafting is in fact taking place as I speak, because I understand that we will go on to the committee stage tomorrow.

With these amendments we should be able to achieve an outcome that is satisfactory to both sides of parliament, but they will still need appropriate scrutiny. We have received a letter from Senator Ellison detailing the amendments and how they will operate. Senator Ellison has provided the shadow minister, Mr Melham, with a point-form view of the amendments and an in-principle agreement on the purpose of the amendments. Of course, the final drafting is yet to be seen. We are confident that the amendments will be drafted in accordance with the statement of intent or the letter provided by Senator Ellison.

Organisations such as the ACC need cross-party support to ensure their effective operation. This bill, when amended, should deliver a model that ensures a strong and more effective Australian Crime Commission. The government wants to have the Australian Crime Commission in place before 1 January; in fact, the government is so keen to meet its own deadline that it has advertised the position of CEO before the bill has been passed. This is perhaps somewhat presumptuous; nonetheless, Labor are willing to expedite the passage of this bill, subject, as I have already said, to those amendments reflecting not only our earlier discussions with the government but also the statement provided by Senator Ellison in his letter of 18 November 2002. I note there are advisers in the chamber. I am sure they will be drafting those amendments, if they have not already done so. We look forward to receiving those amendments early so that we will be in a position to deal with them in the committee stage tomorrow.