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Friday, 29 November 1985
Page: 2607

Senator MISSEN —In accordance with the provisions of the National Crime Authority Act, I present the first report of the Joint Committee on the National Crime Authority. I seek leave to move a motion in relation to the report.

Leave granted.

Senator MISSEN —I move:

That the Senate take note of the report.

I seek leave to incorporate my tabling statement in Hansard and to continue my remarks later.

Leave granted.

The statement read as follows-

This report of the Joint Committee on the National Crime Authority is the Committee's first since it began effective operations in March this year. Regrettably, the Committee must report to the Parliament that it is unable to fulfil its statutory duty because it does not have-and has been unable to obtain from the National Crime Authority-sufficient information of substance to serve as a basis for the monitoring and review role vested in it by this Parliament. This situation has arisen because of a fundamental difference of view between the Authority and the Committee as to the Authority's obligation to provide information which the Committee believes necessary to carry out its statutory duty.

I should emphasise that, while the Committee has been active in a number of areas falling within its charter, the subject matter of this first report raises a threshold problem which is of such fundamental significance that it requires immediate attention. The Committee intends to report on its other activities in due course. However, it is unable to discharge its statutory duty effectively until this threshold problem has been resolved.

The Committee was established under the National Crime Authority Act 1984 as a result of an amendment inserted in the Act during the committee stage of the debate in the Senate. The original proposal for such a parliamentary committee was put by Mr Frank Costigan, QC during evidence he gave before the Senate Standing Committee on Constitutional and Legal Affairs inquiring into the National Crime Authority Bill.

I would like, at this point, to pay tribute to my fellow-Committee members for the totally bi-partisan way in which they have performed their duties. Given the politically sensitive nature of the Committee's responsibilities and the peculiar difficulties which the Committee has faced in its first year of operation, the spirit of co-operation and goodwill which has prevailed is particularly noteworthy.

At the first meeting the Committee had with the Authority the Chairman, Mr Alan Griffiths, MP, suggested that the relationship between the two bodies was likely to be characterised by an element of `creative tension'. In using this term he was conscious of the potential difficulties inherent in the legislation and indeed in the very nature of the task assigned to this Committee. As with some other legislation, the section of this Act which sets out the duties of the Committee is open to different interpretations.

As events quickly proved, he was not wrong about the likelihood of an element of tension between the Committee and the Authority. It has arisen precisely because the Authority and the Committee, as he predicted, have taken different views as to the nature of the Committee's duties under the Act. It remains to be seen whether the role of creativity will be such as to resolve our problems.

The Committee's role is unique, as it is the only instance of a parliamentary committee specifically established to act as a watchdog over one statutory authority. This is perhaps a recognition of the seriousness of the issues raised by the need to combat organised crime in this country. These issues require a balancing of the community interest in reducing the grave social and economic effects resulting from organised crime with all the resources it can muster and of the protection of individual civil liberties.

The unique nature of the Committee's role-and the consequent lack of precedent-has made the Committee's task more than usually difficult. However, throughout what has been a difficult period of operations, the Committee has been fully conscious that it possesses the full range of powers available to a parliamentary committee. The most important of these-the power to send for persons, papers and records-is encompassed within the identical resolutions passed by both Houses at the time of the Committee's establishment. The Committee's role is consistent with the long-established tradition in our parliamentary system of requiring executive and bureaucratic accountability to the Parliament.

Parliament has made a judgment that a joint parliamentary committee is the appropriate body, presumably with the necessary time and resources, to provide detailed oversight of the National Crime Authority. It can only be presumed that the traditional avenue of ministerial accountability was not, by itself, considered adequate to provide detailed supervision of the Authority's operations, having regard to the complex and sensitive issues involved in those operations and the need to ensure that they are properly dealt with.

As the Committee's report relates, evidence of a divergence of view between the Committee and the Authority as to the nature of our relationship and as to the extent of the Committee's powers to seek information was apparent from our first meeting, when the Authority resisted attempts by the Committee to obtain detailed information about the transition from the Costigan Royal Commission to the Authority.

This resistance foreshadowed a general reluctance on the part of the Authority, based upon its interpretation of s 55 and upon its view of its obligations under s 51 (the secrecy provision) of the Act, to provide the sort of detailed information about its operations which the Committee regards as necessary if it is to monitor the Authority's operations effectively.

When this clear difference of view emerged it was agreed that the Committee should prepare guidelines for the future conduct of proceedings between the Authority and the Committee.

At about this time the Committee had concluded that, in the light of the disagreement about the Committee's right to seek detailed information on the transition from the Costigan Royal Commission, it should seek counsel's opinion on that issue and upon the broader question of the Committee's powers. This opinion, provided by Mr C. M. Maxwell and summarised in the Committee's report, served as the basis of the Committee's proposed guidelines.

In summary form, counsel's view is that there is to be implied from the Act a duty or power to inquire vested in the Committee. This implication is reinforced by a study of the resolutions passed by both Houses relating to the powers and proceedings of the Committee. Among other things, these resolutions specifically empower the Committee to send for persons, papers and records, which is the traditional power of the parliament to coerce the giving of information as part of its investigative functions. This interpretation is supplemented by paragraph (q) of the resolution which directs the Committee in carrying out its duties to `ensure that the operational methods and results of investigation of law enforcement agencies as far as possible be protected from disclosure where that would be against the public interest'. This carries a clear implication that the Parliament contemplated that the Committee would be seeking and obtaining from the Authority information relating in some detail to the performance of its functions including any particular decisions made by the Authority in relation to investigation of particular matters.

Dealing with sub-section 55 (2) of the Act, which seeks to prohibit the Committee from investigating a matter relating to relevant criminal activity or reconsidering the findings of the Authority in relation to a particular investigation, counsel suggests that its purpose was to ensure that the Committee did not usurp or duplicate the Authority's functions. The Authority's role is to investigate; the Committee's is to monitor and review the way in which the Authority discharges the function of investigation.

The purpose of the prohibition is to prevent the Committee making its own judgments as to what the findings in relation to a particular investigation should be. However, this does not mean that the Committee cannot inquire of the Authority what its findings were in relation to a particular investigation and seek to discover the process whereby those findings were reached. Counsel suggests the Committee would step beyond its legitimate role if it called for the detailed evidence which served as the basis of the Authority's findings or if it considered what findings it would have reached.

Another point of difference which arose at the outset and which, I suggest, epitomises the Authority's view of the relationship between it and the Committee is the question of whether there should be a Hansard record of proceedings between the Authority and the Committee. At first, the Committee acquiesced in the Authority's resistance to the presence of Hansard on grounds of security. However, it soon became apparent to the Committee that a verbatim record was essential and, moreover, the Committee is firmly of the view that a Hansard record is a fundamental element of any parliamentary proceeding.

I should point out, at this stage, that the Authority has subsequently agreed, albeit reluctantly, to the presence of Hansard during Committee proceedings.

However, on the fundamental issue of interpretation of the Committee's right to seek additional information to fulfil its statutory duties there has been no meeting of minds. At a meeting on 15 August where discussion of the issue came to a head, it became apparent that there is a clear delineation of view between the Committee and the Authority on two separate-although interconnected-issues. One is the legal question of the extent to which, as a matter of statutory interpretation, the Authority can be required to provide information to enable the Committee to carry out its statutory duty to monitor and review the Authority's performance. The second is the perception of the nature of the relationship between a parliamentary committee, vested with all the traditional powers attaching to such committees and a creature of the Parliament made subject by statute to the scrutiny of that Committee.

At those discussions Mr Justice Stewart, armed with an opinion from the Secretary to the Attorney-General's Department in support of the Authority's view, informed the Committee that the Authority believed that it could not properly reveal information to the Committee relating to any relevant criminal activity; that is, any information about any of its investigations. The secrecy provision in s 51 of the Act, which prevents members of the Authority from divulging information, except for the purposes of the Act, is seen by Mr Justice Stewart as conflicting with the right of the Committee to obtain information. Because of the Authority's view of the limits placed on the amount of information it may divulge to the Committee, it has formed the view that to go beyond those limits would place it in breach of s 51.

The Committee does not doubt the genuine nature of the Authority's perception that to divulge information beyond the limits established by its interpretation of sub-section 55 (2) would put it in breach of the Act's secrecy provision. The Committee is also fully aware of the security implications which may arise from dessemination of information held by the Authority. Nevertheless it is apparent that this Committee cannot fulfil the duty which the Parliament intended without considerably more information than has been formally provided to date. The interpretation of the Committee's powers to which the Authority is committed effectively means that the Committee cannot discharge the duties vested in it by the Parliament.

The Committee accordingly decided that it must report this impasse to the Parliament in order to seek an amendment to the legislation that will ensure that the Committee is properly equipped to undertake the task intended by Parliament. In the Committee's view-and the report contains a recommendation to this effect-the National Crime Authority Act should be amended to make it clear that the Committee has a right of access to the full range of information held by the Authority so as to enable the Committee to monitor and review the Authority's operations effectively.

The purpose of the Committee's recommendation is to seek from the Parliament explicit statutory recognition of, or the removal of any impediment to, the exercise of the full powers of inquiry vested in a parliamentary committee. The Committee is fully aware of the delicate nature of the issues involved and of the consequent need to ensure that the concerns of the Authority regarding security, personal reputations and safety are respected.

However, I wish to stress the Committee's view that it must be the final arbiter of the extent to which information permissible within the terms of an amendment to the legislation along the lines proposed in the Committee's recommendation ought properly be provided. In this context the Committee sees as its own responsibility the adoption of procedures consistent with this objective. Moreover, the Committee wishes to emphasise that powers granted under an amendment of the type proposed would be seen by the Committee as reserve powers and would be used judiciously.

The Committee's recommendation seeks an amendment to the Act to specifically provide that the Joint Committee on the National Crime Authority should have the power to do such things and make such inquiries as it thinks necessary for the proper performance of its duties. The amendment would further provide that where information sought by the Committee is of such a nature that its disclosure to members of the public could prejudice the safety or reputation of persons or the operation of law enforcement agencies it should be made the subject of a separate report to the Chairman and Deputy Chairman of the Committee. This latter proposal is modelled on the arrangements in sub-section 59 (3) of the Act dealing with the provision of information by the Authority to the Inter-Governmental Committee.

The Committee does not make this recommendation lightly. It has given the issues discussed in the report long and serious consideration and has concluded that, unless a recommendation of the sort proposed is forthcoming, there is no point in retaining a parliamentary committee to act as a watchdog over the National Crime Authority.

The issue at stake in this report is whether the Parliament is going to assert its right to monitor and review one of its creatures-that is, the National Crime Authority-or whether, for a range of reasons, including a degree of bureaucratic resistance, it will relinquish that role in favour of the traditional model of ministerial accountability alone. Indeed, as the report states, in the absence of the necessary amendment the retention of the Committee would be a charade as it provides the appearance but not the substance of the Authority's accountability to Parliament.

It is interesting, in the context of the Committee's difficulties to reflect upon the fact that the Parliament, through the National Crime Authority legislation, has seen fit to vest in State Ministers the power to demand specific information about the Authority's operations. Somewhat incongruously, however, as a result of the Authority's interpretation, the same information is not available to the Committee appointed by the Parliament specifically to oversee the Authority's operations.

It will come as no surprise to honourable members that the Chairman has, through a range of informal sources been apprised in some detail of information which the National Crime Authority would regard as highly confidential. As Parliament would expect, consistent with his responsibilities as Chairman of a parliamentary committee, he has not made any of this information public.

I wish to conclude by bringing one final matter to the attention of Parliament. As part of its statutory duty to keep itself abreast of changing trends in organised crime, the Committee has commenced a series of briefings by state and federal law enforcement officers.

As part of this process the Committee has been gratified by the ready co-operation which it has received from all states and the Northern Territory-with one exception. That exception-and this will come as no surprise to most members-is the Premier of Queensland who, for whatever obscure reason, has refused to make thQueesland police commissioner available to discuss with the Committee the question of organised crime in his state and the broader issue of co-operation between the state and the National Crime Authority. Having regard to the serious level of organised crime in this country, and especially to the threat posed to young people by trafficking in narcotics, the Committee finds it inexplicable that any person in high office would refuse to co-operate in the fight against organised crime.

Senator MISSEN —I move:

That the resumption of the debate be made an Order of the Day for the next day of sitting.

I do so on the strictest assurance by the Government that there will be time made available to debate this report on Monday or Tuesday.

Question resolved in the affirmative.

Senator MISSEN —I also seek leave to make a brief statement relating to the premature disclosure of the report.

Leave granted.

Senator MISSEN —This morning in several of the Australian newspapers there appeared references to this report which show a clear understanding and knowledge of a number of the recommendations of the report, and there was a claim on the part of some of the newspapers that this came from a member of the Committee. I want to say that this came as a great surprise to the Chairman, Mr Alan Griffiths, and myself. He made a statement last night. Of course, he was unwilling to discuss the report until it had been disclosed. I told the Press exactly the same thing. I am assured by all members of the Senate on the Committee and the Senate shadow Ministers who have had a copy of the report that neither they nor their staff disclosed in any way the information that appeared in the newspapers. I deplore what has happened. It does not relate to matters relating to any disclosure from the National Crime Authority. It relates to the disclosure of what was in the report, and I think it is deplorable that this has happened.