As the deputy chair of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, ACLEI, and—as Senator Macdonald mentioned—as a member of the Senate Legal and Constitutional Affairs Legislation Committee I will make some brief comments on the Law Enforcement Legislation Amendment (Powers) Bill 2015.
Serving on the ACLEI committee has given me insight into the tools that Australia uses to combat law-enforcement corruption and serious organised crime. These two challenges go hand in hand given that it is very difficult for one to succeed without the other. ACLEI refers to the relationship between corruption in law enforcement and organised crime as the ‘corruption handshake’. That is why ACLEI’s model of operation—where they retain core staff but co-opt staff from other Commonwealth agencies, according to their needs—is so effective. It enables these agencies to share specialist knowledge in the understanding of serious organised crime, in the case of the Australian federal police and the Australian Crime Commission, and corruption risk factors, in the case of ACLEI.
When ACLEI forms a task force, instead of jumping in early to remove corrupt staff from an organisation they observe them over an extended period and, in so doing, are able to form a picture of the criminal network in which they are involved. ACLEI, the Integrity Commissioner and the ACC conduct examinations and hearings as part of their special operations and investigations into serious and organised crime or law-enforcement corruption.
As deputy chair of the ACLEI committee, I have had the opportunity to visit ACLEI’s offices and see firsthand the facilities they use to conduct their hearings. These hearings are an incredibly important and often used tool in combating crime and corruption. They give ACLEI and the ACC the ability to gain an insight into the way that organised crime works. The information they gain through hearings and examinations may not otherwise be obtained, except through lengthy and complex investigations.
In the last financial year, according to its annual report, ACLEI conducted 17 hearings and served 31 notices to produce information, documents or other such things. In the same period, the ACC conducted 263 coercive examinations. A person cannot refuse to answer a question or produce a document or such thing, in an examination or hearing, on the basis that it might incriminate them or expose them to a penalty. However, there are limitations to the circumstances in which evidence can be used against a person in criminal proceedings. For example, immunity is provided—in ACC examinations—that prevent self-incriminating evidence being used directly as evidence against the person who provided it, but self-incriminating evidence can be used to obtain other evidence that may be admissible against the person.
Several recent court cases have affected the powers of the ACC, Integrity Commissioner and ACLEI to conduct examinations and hearings. These are cases such as: R v Seller and McCarthy, X7 v the Australian Crime Commission, Lee v the New South Wales Crime Commission, and Lee v R. While not all of these cases concern the Commonwealth, they do make decisions about the use of coercive powers by state agencies, which have implications for the ACC and ACLEI.
In the X7 case, the High Court found—by a 3-2 majority—that the ACC was not authorised to examine a person who was already charged with a specific offence where the examination concerns the subject matter of the offence so charged. The key question in this case was whether the powers of an examiner were restricted by the ‘right to silence’ enjoyed by an accused in criminal proceedings. In the case of Lee v the New South Wales Crime Commission, the High Court considered the principles in the X7 case but found—by a 4-3 majority—that the post-charge examination of a person could be conducted.
Lee’s case was distinguished from X7 in that the examination was the result of a court order, and the High Court found that the New South Wales Supreme Court had the discretion not to order the examination. The case of Seller and McCarthy found that evidence given under coercive powers could be unfair and therefore should not be considered in subsequent criminal proceedings. The second Lee case concerned an examination by the New South Wales Crime Commission that took place before the accused was charged with an offence. The High Court unanimously found that the unlawful disclosure of the accused’s examination transcript to the prosecution rendered the trial unfair and ordered a retrial.
The limits these cases have placed on the examination powers of these agencies were not intended when the powers were legislated for. For example, following the X7 case, the ACC now no longer examines persons charged with an offence if the questioning touches on related matters. I am sure it was envisaged in the original legislation that the coercive powers of ACLEI and the ACC would not limit a person’s right to a fair trial. I am sure it was also envisaged that witnesses coerced into giving answers and producing information or documents would be given appropriate immunity protections.
I do not believe it was envisaged that ACLEI and the ACC would be prevented from examining a person because the matters they are being examined about are the subject of criminal proceedings against them. The legal principle relied on—in the X7 case—is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with ‘irresistible clearness’.
The bill that is now before the Senate, the Law Enforcement Legislation Amendment (Powers) Bill 2015, offers this clarity. It is designed to restore the intent of the original legislation. This bill makes amendments to the Australian Crime Commission Act 2002, the Law Enforcement Integrity Commissioner Act 2006 and the Public Interest Disclosure Act 2013. It will clarify the powers of Australian Crime Commission examiners to conduct examinations and the Integrity Commissioner, supported by ACLEI, to conduct hearings.
The ACC and ACLEI are two very important and highly effective agencies when it comes to combating serious and organised crime in Australia. It is estimated that serious and organised crime costs our community some $15 billion a year. Over the last 12 months alone, the ACC has seized more than $23 million in cash, more than $150 million in assets, more than $386 million worth of drugs, and engaged in the disruption of 39 different criminal entities. One of the foremost responsibilities of a government is to protect the safety and security of its citizens. That is why we need to give our law enforcement agencies, particularly those charged with combating the most serious criminal activity, the tools they need to do their jobs effectively. It is also important that extraordinary powers given to agencies like ACLEI and the ACC are also balanced with protections for citizens. I am pleased that this bill contains safeguards that apply to hearings to ensure that they do not affect the fair trial of witnesses. With these protections in place, Labor supports the measures contained in this bill.
I would like to conclude by thanking all those who work in Commonwealth agencies such as the AFP, the ACC and ACLEI for the excellent work they do in tackling corruption in our law enforcement institutions and fighting serious and organised crime. It is a difficult and sometimes dangerous job and one which helps keep our community safe. I commend the bill to the Senate.