Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

I join with my colleague the member for La Trobe in speaking to this report of the Joint Committee on the Australian Crime Commission. The Australian Crime Commission is the nation’s premier law enforcement agency. Its purpose is to combat serious and organised crime. To do that, it has been given extraordinary powers by virtue of this parliament. It has the power to compel people to appear before it and to demand that they answer questions or provide documentation. Unlike other police or criminal law jurisdictions, there is no right to silence. The coercive powers exercised by this body are unique when it comes to law enforcement in this country. As a consequence of that, this parliament in 2002 put various measures in place to ensure that there would be appropriate balance between the exercise of these extraordinary powers in the fight against serious and organised crime and the preservation of civil liberties. Section 29(1A) of the Australian Crime Commission Act requires that, before issuing a summons, an examiner must be satisfied that it is reasonable in all the circumstances to do so and that the examiner must record in writing the reasons for the issue of the summons. The next section deals with the issue of notices in the same way.

I am not a lawyer, yet I would have thought that was pretty plain on the face of it and meant that, before issuing a summons, you would actually write your reasons—but not so, it seems. Our studious legal colleagues in the ACC apparently developed the practice of writing those reasons at any time, including well after the event. That is what came to a head in the Supreme Court in Victoria. Justice Smith held that, for a summons to be valid, those reasons must be issued at the time and recorded in writing prior to the summons being issued. As we have just heard from the member for La Trobe, that put in jeopardy almost 600 active investigations. These are not just your normal police investigations; these are investigations into serious and organised crime. It was on that basis that the government—I think it was in the last sitting we had before parliament was prorogued last year—introduced the Australian Crime Commission Amendment Bill 2007. It sought to validate all those summonses and notices that had been issued but which, by virtue of Justice Smith’s decision, had become invalid. In other words, it kept on foot those investigations and the evidence that was collected in pursuit of those summonses and notices. Furthermore, it retroactively validated those into the future.

We do need to have a balance. It is our role to ensure that there is a balance between an individual’s rights and the rights of the community, which suffers the scourge of serious and organised crime. That is what we attempted to do in the original legislation, but those exercising the powers of the ACC failed to interpret that. Like the member for La Trobe, I too was very concerned when the joint parliamentary committee was not aware of the proceedings that were on foot before Justice Smith in the Supreme Court in Victoria. As a consequence, we were caught last year quite unawares of the need for this retrospective legislation. We had no intention of holding up or prejudicing those investigations, and those matters proceeded through in some haste to ensure that those investigations remained intact.

We have now recommended that the original drafting of the legislation be adhered to. We have recommended that an examiner must record the reasons for summonses and notices when they are issued. As a matter of fact, today the head of the ACC, Alastair Milroy, has written to the committee secretariat saying that, on the basis of the committee’s recommendations, they will comply with that intention.

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