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Tuesday, 1 May 1984
Page: 1364


Senator TATE —On behalf of the Standing Committee on Constitutional and Legal Affairs, I present a report on the National Crime Authority Bill 1983 and the National Crime Authority (Consequential Amendments) Bill 1983 together with the transcript of evidence.

Ordered that the report be printed.


Senator TATE —by leave-I move:

That the Senate take note of the report.

I seek leave to incorporate my tabling speech in Hansard.

Leave granted.

The speech read as follows-

I present the report of the Senate Standing Committee on Constitutional and Legal Affairs on the reference given to it by the Senate on the 17th November, 1983.

The essence of the reference was

'That the National Crime Authority Bill 1983 and the National Crime Authority ( Consequential Amendments) Bill 1983 be referred to the Standing Committee on Constitutional and Legal Affairs for inquiry and report, on or before the 30 April 1984, as to whether the Bills fulfil effectively the objective of investigating organized crime and official corruption.'

The Committee worked under undue constraints as to time. This prevented that full discussion and deliberation around the table over a period of time which normally characterises the work of Senate Committees and explains much of the worth of their reports.

Nevertheless I believe the Committee can be proud of a very commendable achievement in presenting to the Senate this report which is lengthy and contains recommendations whose range indicates that there was no shirking of a lot of hard thinking on issues seldom addressed by Parliamentary committees.

The Committee was assisted by its Secretary, Mr Chris Fogarty, Research Officers, Mr Cleaver Elliot and Mrs Mary Louise Willheim, and Legal Adviser, Mr John Lord of the Melbourne Bar. Tribute should be paid to the extraordinary hours put in by the secretaries and word processors who have helped the committee meet the deadline set by the Senate.

The Report

In outlining the report I will be speaking of it as the Committee's Report. I point out, however, that there is a substantial dissent entitled 'Minority report of Senator Alan Missen' and dissents on a small number of particular recommendations by individual Senators. However, apart from the caution concerning Senator Alan Missen, the Senate will not be misled if I speak of the Report as the Report of the Committee.

Also, throughout my statement and the Report, the body to be established is referred to as the National Crime Authority (''The Authority''). In fact, the Committee recommends that the title of the body be the Australian Crime Commission but for ease of comparison with the Bills under review the term Authority is used in the Report.

In General

The Committee has concluded generally that the Bills which were presented to the Senate had grave defects or omissions. Fundamental change is required to the legislative framework upon which the Authority is to operate. We concluded that the suppression of organised crime and official corruption is an attainable goal , but if the Authority is to play a significant role in such suppression it must be given a fighting chance. It must be vested with an adequate range of powers which it can exercise largely free of political interference.

However, not all recommendations are directed at strengthening the Authority. In its recommendations as to private hearings and the indemnities to be offered those compelled to give certain types of self-incriminating evidence, and its proposal for speedy access to the Courts for resolution of grievances against the Authority, the Committee was equally concerned to safeguard individuals subjected to the operations of the Authority.

The general concern of the Committee has been to free the Authority as much as possible from undue dependence on Governments for the initiation or direction of its activities. The intervention of Governments should be confined to those occasions where it is thought necessary to make inroads into the traditional rights and liberties of the subject in order to further the suppression of organised crime. Short of that point, the Parliament should directly confer a range of functions on the Authority, the proper discharge of which will depend on the structure and general accountability of the Authority.

To that end, the Committee departs from the structure of the Bill as drafted and proposes that a distinction be recognised between ordinary and special functions of the authority. This distinction, fundamental to the approach of the majority of Committee members, is elaborated shortly.

Relevant Criminal Activity

But, whether functioning in an ordinary or in a special way, the authority should not dissipate its resources. The Bill, in setting general parameters as to the criminal activity which should be of concern to the Authority, establishes a list of ''relevant criminal offences', the maximum punishment for which is imprisonment for not less than three years and which require substantial planning by more than one offender.

The Committee considers that such listing of offences carries the danger that very relevant crimes may be omitted either altogether, or by reason of the fact that the maximum punishment provided for would be less than three years imprisonment. Such appears to be the case with SP bookmaking.

It would be better if the definition of 'relevant offence' were re-drafted so as to require the National Crime Authority to direct its activities to offences which appear to be connected with one another, involve several offenders, substantial planning and organisation and the use of sophisticated methods and techniques.

The Authority should be required to then give particular consideration to types of offences similar to those defined as 'relevant offences'. These should be set out in an illustrative, not exhaustive manner.

Admissible Evidence

Again, whether functioning in an ordinary or in a special way the Committee recommends that the Authority be responsible for the collection and assembly of admissible evidence for appropriate civil or criminal court proceedings. The Committee does not perceive successful proceedings as the sole criterion by which to eventually judge the Authority's success. But it does believe that the task of ensuring, either from within its own resources or by supervising and co- ordinating the work of other agencies, that admissable evidence is assembled, will act as a focus for the Authority's activities. It is not incompatible with the task of investigating and compiling intelligence and should be undertaken as a matter of course.

I return to the distinction between ordinary and special functions of the Authority.

Ordinary Functions

Ordinary functions are those which can be undertaken by the Authority of its own volition, independent of Government directive. They should be clearly set out and sufficiently empowered as a direct statutory charter for its activities.

Such ordinary functions would include-

the collection, analysis and dissemination of criminal information and intelligence;

the investigation of 'relevant criminal activity';

to assist such investigation, the creation of task forces comprised of Commonwealth agencies and the co-ordination of task forces consisting of State and Commonwealth agencies;

the making of recommendations for law reform.

The carrying out of these functions would enable the Authority to get a long way down the track without specific governmental initiative or intervention, and would represent a considerable advance on the present Bill.

The Committee was most concerned at the apparent lack of co-operation between the Government agencies in the provision of information relevant to combatting organised crime. The Authority would be severely impaired if this intolerable situation were to continue.

The Committee therefore recommends:

The Bill should be amended to empower the Authority to require the transfer to it of information held by any other Commonwealth agency;

that the various secrecy provisions in Commonwealth legislation preventing the disclosure of information held by Commonwealth agencies should be overcome by the secrecy provision governing the Authority;

the Bill should be redrafted to provide for the Authority, in exercising its ordinary functions and powers, to receive from the Commissioner of Taxation information relevant to taxation or tax-related offences;

the Bill should be redrafted to provide the Authority with the power necessary to enter into arrangements with State instrumentalities private institutions and persons to receive information from them.

Special Functions

Special Functions embrace a range of coercive powers whereby the Authority will be able to compel persons to assist in its investigations. The Committee recommends that such coercive powers should only be exercisable under a term of reference granted by Government. It would be salutary for the Authority to be constrained to articulate reasons for wishing to exercise extraordinary powers, and salutary for governments to have to take responsibility for permitting such exercise.

The major special functions and powers with which the Committee deals are the powers to compel the attendance of persons to give evidence and the power to compel the answering of questions or the production of documents. Its recommendations have been designed to advance the ability of the Authority to gather and assemble admissable evidence.

Passports

Thus, concerning the attendance of witnesses, the Committee endorses the Bill's provision for the delivery up of passports, but further recommends that the Authority should be empowered to apply to a judicial officer for an order to arrest a person where there are reasonable grounds for believing that the person is about to leave Australia to avoid giving evidence to the Authority.

Summons to Appear

The Committee also consider it sufficient that the summons to appear should set out the notice describing the terms of reference given under Clauses 11 and 12 without the need to set out the general nature of any line of questioning.

Search Warrants

In relation to search warrants, the Committee is anxious that material not be tampered with or destroyed which may be the case if normal ''notice to produce'' procedures were employed in some circumstances. The Committee endorses the general tenor of the provision requiring application to a judge for a search warrant where such loss of evidence is likely, but it considers the requirement that the evidentiary material which the Authority seeks to seize be on the premises in the 24 hours following the issue of the warrant is unnecessarily limiting.

It should be sufficient that the Authority have reasonable grounds for suspecting that at that time, or some definite future time within the one month life of the warrant, the evidence is likely to be in a particular place.

The Compelling of Answers and Documents

In relation to compelling the answering of questions or the producing of documentary materials the Committee's recommendations were much influenced by the desire to enable the Authority to ''follow the money trail'' either without hindrance altogether, or in a way which allowed as much of the evidence as possible to be admitted in later court proceedings. Documents evidencing property or financial transactions assume particular importance in this regard.

Legal Professional Privilege

For that reason, for example, the Committee recognises the claim of legal professional privilege but only in the narrowest understanding as set down in the recent High Court decisions in Baker v. Campbell and Grant v. Downs. These confine the privilege to communications brought into existence for the sole purpose of their being submitted to a legal adviser for advice; or for the sole purpose of their use in existing or anticipated legal proceedings.

Self-Incrimination

In its endeavour to ensure that effective court proceedings could be taken on the basis of admissible evidence, the Committee was conscious of the strictures of the common law courts that the right to refuse to answer questions or produce documents on the grounds of self-incrimination is not to be abrogated, except by express terms and then generally in a way which does not allow self- incriminatory evidence to be used against the person compelled to give such evidence.

The Committee deliberated at length on the balance to be struck. In the end the regime proposed:

(1) does not acknowledge any claim to the privilege made by corporations;

(2) does not acknowledge any inhibition on the use of compelled evidence in civil proceedings. This is particularly important in stemming the cash flow, or confiscating the assets, of criminal organisations;

(3) in prosecutions for an offence (criminal proceedings)

(a) does not acknowledge any claim to the privilege in relation to records of a business or financial institution. These documents, so essential to the following of the money trail, can be freely used as admissible evidence against any person including the (natural) person compelled to make them available to the Authority;

(b) acknowledges the force of a person's claim to the privilege to remain silent on the grounds that certain oral testimony or documents (other than 3a) may tend to incriminate him. The Committee recommends that the claim be abrogated or over-ridden, but the compelled answer or document, or evidence derived from it, should not be available as evidence in criminal proceedings against the person compelled to give such evidence. Of course, the evidence is available against that person in civil proceedings, and against any other person in any court proceedings;

(4) recommends that the grant of an indemnity in return for compelling self- incrimating answers or documents (to be known as a ''use-derivative use indemnity'') should be granted by the Authority and not by the Attorney-General as presently provided in the Bill.

In comparison with the Bill, these recommendations narrow the range of compelled evidence in relation to which the privilege can be claimed (see 3 (a)) but strengthen the indemnity offered to a person in the instance where the claim is recognised but abrogated.

The Committee believes it has struck the right balance and is particularly mindful of evidence received which suggested that such recommendations would not lead to the loss of admissible evidence against major targets. In fact, we believe that we have enhanced the possibility of furnishing such evidence in criminal prosecutions.

Taxation Records

The Committee considers that the Authority should have speedy access to the fullest range of taxation records relevant to its enquiries under its terms of reference. The National Crime Authority (Consequental Amendments) Bill sets out a cumbersome procedure requiring an order of a judge of the Federal Court who is required to give attention to criteria much more restrictive than is the case with designated Royal Commissions, many other Commonwealth agencies (and State and P.N.G. tax departments), who have ready access to tax records for the purpose of administering laws for which they are responsible. The Committee recommends similar access in the case of the Authority and considers that information derived from the handing over of such records ought be available for use in preparing court proceedings.

The Inter-Governmental Committee

It is desirable to have a body which represents the range of Governments throughout the Federation whose co-operation at a practical level will be of great assistance to the Authority. The constitutional reality of State and Commonwealth jurisdictions must also be recognised.

The Committee has therefore accepted the need for an Inter-Governmental Committee (consisting of the Commonwealth and participating States) but has greatly reduced those occasions on which it can exercise a decisive influence on the Authority's activities.

Thus, if this Committee's recommendations on ordinary functions are accepted, the I.G.C. loses the ability to frustrate a line of enquiry or impede the gathering of evidence by non coercive means. The Authority can go a long way without directive from, or dependence on, the I.G.C.

Granting of a Reference

It is desirable that the Authority be required to justify, and governments be prepared to accept the responsibility for, the exercise of special functions. This should be expressed in the granting of terms of reference.

But possibly the greatest defect in the Bill is contained in Clause 9 (3) which allows one member of the I.G.C. to veto the whole resolution approving a term of reference, rather than merely that portion of it over which the Government exercising the veto has jurisdiction. The latter cannot be prevented as it is constitutionally required that the Commonwealth or relevant State confer coercive powers in relation to the investigation of offences in their respective jurisdiction.

The Committee recommends that the Commonwealth be able to grant the Authority a reference relating to relevant criminal activity offending Commonwealth laws without the concurrence of the I.G.C. This is constitutionally sound and recognises the practical point that the Authority is Commonwealth established and funded.

In those matters which involve a breach of State law occurring wholely within a State, the Committee recognises the constitutional need for the State Minister, sufficiently empowered by State law, to put the reference before the I.G.C. for its approval so as to confer coercive powers on the Authority. In that sense only does the Committee recognise a veto power existing within a State.

In cases of mixed references, that is those involving Commonwealth and State jurisdictions and laws, clause 9 (3) should be amended to provide that any State veto is limited to that portion of the reference which falls wholly within its jurisdiction in the sense explained above. The reference must remain alive in relation to the jurisdictions of either the Commonwealth or such other States which wish to grant a reference. In summary, the resolution approving the reference must not wholly founder because of a veto exercised by one particular Government.

Withdrawal of a Reference

To prevent the frustration of the use of coercive powers by the withdrawal of a reference part way through an investigation the Committee recommends in the case of the Commonwealth that such withdrawal only take place on the affirmative resolution of both Houses of Parliament. This enables the early termination of coercive powers where the Government can demonstrate good reason, yet lessens the chance of an inquiry being truncated for unscrupulous reasons. Commonwealth legislation cannot prohibit the State withdrawal of its portion of a reference.

Duplication of Police Enquiries

A matter of concern related to the requirement that the I.G.C. not approve a reference to the Authority unless satisfied that ordinary police methods of investigation were not likely to be effective. Whilst agreeing with the need to avoid duplication of effort which could be undertaken by existing agencies, the Committee considers that the present Bill requires a judgment which could be speculative and premature. It therefore recommends that before approving a reference to the Authority, the I.G.C. shall take into account whether ordinary police methods of investigation into the matter are likely to be effective.

Seeking of a Reference by the Authority

The Authority should be expressly empowered to approach the I.G.C. in order argue the case for a reference. If the Committee's recommendations as to ordinary functions are accepted the Authority will have undertaken considerable investigations before concluding that terms of reference are necessary. The results of such investigation can be laid before the I.G.C. If the request is rejected the Authority should only be entitled to report such rejection in its annual report if it is satisfied that to do so would not prejudice the reputation or safety or fair trial of any person or the operations of law enforcement agencies.

Publicity

A major issue requiring resolution by the Committee was that of the publicity which ought to attach to the work of the Authority, particularly in its hearings .

Private Hearings

The Committee acknowledges the concern of the Bill to prevent disclosure to the public of the indentity of persons whose reputation, safety or fair trial might be at stake. The Bill vests power in the Authority to hold private hearings where such matters are imperilled. The Committee has concluded that such protection should be more fully assured and recommends that all hearings should be conducted in private out of the public gaze. Of course, a person summonsed to appear before the Authority should be entitled to representation by legal counsel.

It is the task of the Authority, inter alia, to gather and assemble admissible evidence and to present such evidence to the appropriate body to decide whether to undertake civil proceedings or prosecutions (such as the Director of Public Prosecutions). The Committee's recommendations on privacy of hearings would emphasise this preliminary role of the Authority, and would render its activities in carrying out investigations and gathering evidence more akin to those of the grand jury and ordinary police investigations rather than the Royal Commission.

In those cases where a public airing of allegations of criminal or corrupt activity seems desirable at both the hearing and reporting stages, the Committee believes that the traditional machinery of the Royal Commission is appropriate. But the Authority should not be structured or empowered to undertake this role.

Public Sittings

Nevertheless, there is a very important role for the Authority in educating and alerting the public to the nature and scope of relevant criminal activity in Australia. This could be undertaken by the issuing of special bulletins, but the Committee also recommends that public sittings of the Authority be held during which the members of the Authority could, for example, detail a fraudulent tax evasion scheme of which it has become aware. Public sittings will also be appropriate and useful for the carrying out of the Authority's function under clause 10 (e) of the Bill, concerning reform of the law relating to relevant offences, reform of administrative practices and reform of administration of the courts in relation to trials of relevant offences.

Defamation

Should the Government not accept this preference of the Committee for a grand jury type role to be assumed by the Authority in conducting its hearings in private, the Committee recommends that the traditional defence available to reports of similar proceedings be available to the media in any action for defamation based on a report of a public hearing.

The Committee does not consider it appropriate that the defence of fair and accurate report of proceedings be stripped from defendants as proposed by the Bill. The Government should await a more comprehensive resolution of the issues as being undertaken by the Standing Committee of Attorneys-General.

Prior Statements

Whilst all hearings should be held in private, any such evidence can be available for subsequent court proceedings (subject to the privilege against self-incrimination). However, the Authority may give a person an undertaking that evidence given will be held in strictest confidence and not made available in litigation. The Committee clearly perceived the value of such an undertaking in encouraging the disclosure of information. Against this, it had to balance the right of an accused person in a criminal trial to have access to prior statements of a witness in order to probe for inconsistencies, perjury and such like.

If Mr Justice Anderson is a recent unreported judgment in the Supreme Court of Victoria is correct, the common law requires the automatic overriding of any claim that evidence was given to an authority in deepest confidence. The Committee does not agree that the common law situation should be maintained and recommends that when the Authority has ordered that evidence be held in confidence, a trial judge may, in his discretion if he considers that a finding as to the guilt or innocence of the accused may turn on that evidence, direct the Authority to make the evidence available.

Structure of the Authority

It was clear to the Committee that the composition of the Authority will be crucial to its likely efficacy and public acceptance. The integrity of the Authority's members will be the primary safeguard against the abuse of power and , unless the community is convinced of such integrity, it may be expected that support for the Authority will waver.

The Committee accepts the method of appointment of Members of the Authority set out in the Bill. However, it disagrees with the provision for a maximum two year term with the possibility of renewal of a further two years. Whilst acknowledging the opportunity thereby given for ministerial responsibility to be exercised, the Committee is conscious that renewal of the term may become a matter of political influence.

It recommends four-year terms for the members of the National Crime Authority with no provision for renewal. Provision should also be made upon the Authority' s establishment to stagger the terms of office of members so as to enable continuity of experience and leadership.

Finally, if members were to sit alone, the possibility of inconsistencies in method and approach would be very real. This would be accentuated if members were informally alloted different geographical jurisdictions. Such differences could have adverse consequences for those subject to the Authority's coercive powers and could lead to a loss of the Authority's credibility. It is therefore recommended that, when conducting hearings, the Authority should be constituted by at least two members.

Accountability of the Authority

The Bills propose to establish a quite new and exceptional body within the Australian community. In being responsible for its creation, the Parliament will need to be satisfied that the Authority will not stray beyond a limited and acceptable role. There are several provisions in the Bill intended to render the Authority accountable for its actions.

Judicial Audit

The Bill provides for a 3-yearly judicial audit of the operation of the Authority to determine its efficiency and whether it has acted illegally or in a way detrimental to rights and liberties of individuals.

The Committee was not convinced that this review could actually be successfully undertaken. Not only would the task of examining the Authority's activity be enormous, but a more immediate method of remedying grievances should operate. In short, the provision for judicial audit is illusory and should be deleted from the Bill.

Ombudsman

Much the same argument as was put concerning the effective and timely work of the judicial auditor was put concerning the calling in of the Ombudsman by an aggrieved person. But additionally, evidence was given of the likely disruptive role of the Ombudsman in the day-to-day work of the Authority. The Committee concluded that provision for the jurisdiction of the Ombudsman to be extended to the Authority should be deleted.

Parliamentary Scrutiny

The Committee believes that the ordinary operation of the parliamentary system, particularly the consideration of, and deliberation on, the annual report of the Authority, provides adequate opportunity for scrutiny of its activities and the overall achievement of its goal.

The Committee makes several recommendations which would make the annual report a more useful document, for example requiring the compiling of statistics on relevant criminal activity in a manner not heretofore undertaken, and in outlining actions and decisions in the courts, arising out of disputes between the Authority and persons caught up in its activities.

These ordinary operations of the parliamenstary system are to be preferred to a permanent parliamentary committee, not only because it is improbable that it would achieve a level of detailed awareness such as the public might expect of it, but because it could also be drawn into the ethos of the Authority from continuous contact with it.

Ministerial Responsibility

Whilst acknowledging that the relevant Ministers should be able to issue guidelines to, and be informed of the activities of the Authority, the Committee recommends that the Bill should be amended to make it clear that, in furnishing guidelines or giving directions to the Authority, a Minister is precluded from doing so in relation to a particular case. In addition, the Minister should be required to table a copy of any directions or guidelines in Parliament within 15 sitting days of their publication in the Gazette. The Committee further recommends that the Bill should be amended to prevent Commonwealth or State Ministers from requiring to provide information concerning a specific matter in relation to its operations, where the provision of such information could prejudice the safety, or reputation or fair trial of a person, or the operations of law enforcement agencies.

Review by the Courts

The Committee is attracted to the proposal that a means should be provided for a person aggrieved by some action of the Authority, especially in the exercise of coercive powers, to obtain an appropriate remedy by speedy judicial process. Existing procedures, especially under the Administrative Decisions (Judicial Review) Act 1977, were said to be slow and could be abused by those wishing to hinder the Authority's operations.

To enable speedy resolution of a grievance, the Committee recommends that a person be entitled to make summary application for remedy to a judge of the Federal Court or a State Supreme Court. The immediate determination of a matter in issue between the Authority and a person is preferable to the processes provided under the present Bill.

Conclusion

Mr President, I believe that the Committee has discharged the task given it by the Senate in a comprehensive and rigorous manner. It has made sensible recommendations which will enable the Government, if it is so minded, to bring into this Chamber a much improved legislative framework upon which to establish the new body required to aid the suppression of organised crime and official corruption in Australia.

I finally wish to extend my appreciation to my colleagues on the Committee, who have supported me through a difficult task under inordinate time constraints. The report is the outcome of their deliberations, and at times, their forebearance.