BILLS DIGEST NO. 130, 2014–15              22 June 2015

Law Enforcement Legislation Amendment (Powers) Bill 2015

Jonathan Mills, Law and Bills Digest Section

Cat Barker, Foreign Affairs, Defence and Security Section

Date introduced: 26 March 2015

House:  House of Representatives

Portfolio: Justice

Commencement:  Sections 1 to 3 commence on the day of Royal Assent. Schedules 1 and 2 commence on the 28th day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

The Bills Digest at a glance

The Australian Crime Commission (ACC) is a national criminal intelligence agency with specialist investigative capabilities to collect, correlate, analyse and share criminal information and intelligence with all Australian law enforcement agencies. The ACC has been specifically tasked to reduce the threat and impact of serious and organised crime on Australia.

The Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing, detecting and investigating serious and systemic corruption issues in prescribed Australian Government law enforcement agencies.

Both these agencies are empowered to conduct compulsory examinations or hearings of people in order to obtain information that would not otherwise be available to investigators. A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing.

Recent Court decisions, delivered in 2013 and 2014, have stated that compulsory examinations or hearings cannot be carried out in relation to matters for which a person has been charged. Some of these decisions noted that only express and clear legislative wording could permit such questioning.

The Bill would provide explicitly confer powers on the ACC examiners to conduct examinations, and on ACLEI to conduct hearings, in situations in which a person has been charged with an offence that the questioning may touch upon.

The amendments proposed by the Bill infringe upon the rights to a fair trial or hearing, while providing certain safeguards.

Concerns have been raised by the Australian Human Rights Commission, the Law Council of Australia, and the Australian Greens, that the rights to a fair trial and against self-incrimination are not appropriately protected under the proposed changes, and that this would not be a reasonable response to the policy need to maintain the ability to conduct post-charge examinations or hearings.

The Government says that this infringement is necessary, reasonable and proportionate in light of the real public policy need to discover information relating to serious and organised crime and law enforcement corruption, even once charges have been laid relating to a matter.

Purpose of the Bill

The purpose of the Law Enforcement Legislation Amendment (Powers) Bill 2015 (the Bill) is to:

•       amend the Australian Crime Commission Act 2002 (ACC Act)[1] to make it clear that Australian Crime Commission (ACC) examiners can conduct certain examinations, which recent court decisions say are not lawful under the current drafting

•       similarly amend the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)[2] to clarify the powers of the Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), to conduct hearings and

•       make a consequential amendment to the Public Interest Disclosure Act 2013 (PID Act),[3] to ensure that the definition of ‘designated publication restriction’ refers to the amended provision in the ACC Act.

Structure of the Bill

The Bill is divided into two schedules.

•       Schedule 1, divided into two parts, which introduces amendments to the ACC Act and the PID Act and

•       Schedule 2 introduces amendments into the LEIC Act.

As the relevant provisions of the ACC and LEIC Acts are similar, Schedules 1 and 2 make similar amendments.

Background

The ACC is a national criminal intelligence agency with specialist investigative capabilities to collect, correlate, analyse and share criminal information and intelligence with all Australian law enforcement agencies. The ACC has been specifically tasked to reduce the threat and impact of serious and organised crime on Australia.

The Integrity Commissioner, supported by the ACLEI, is responsible for preventing, detecting and investigating serious and systemic corruption issues in prescribed Australian Government law enforcement agencies.

The ACC and ACLEI are empowered to conduct examinations and hearings which may involve compelling a person to answer questions about matters, or produce documents or things, relating to an ACC special operation or special investigation into serious and organised criminal activity, or relating to an investigation into law enforcement corruption. A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing.

These examinations and hearings enable the ACC and ACLEI to obtain information that would not otherwise be available, or which could only be obtained after long and complex investigations. Examination material, for example, plays an important role in assisting the ACC to develop an understanding of how serious and organised crime operates, to analyse this information with other relevant information and to disseminate it to Commonwealth, state and territory partner agencies as part of an intelligence product.

A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing on the basis that it might incriminate them, or expose them to a penalty. However, there are limitations on the circumstances in which answers can be used in evidence against the person in criminal proceedings or proceedings for the imposition of a penalty.

The powers of the ACC and ACLEI to conduct examinations and hearings have been considered in a number of recent cases, discussed below, including R v Seller and McCarthy (2013) 273 FLR 155 (Seller and McCarthy),[4] X7 v Australian Crime Commission (2013) 248 CLR 92 (X7),[5] Lee v NSW Crime Commission (2013) 251 CLR 196 (Lee No. 1)[6] and Lee v R (2014) 88 ALJR 656 (Lee No. 2).[7]

These cases have placed limits on the use of the examination powers in certain circumstances in which they had been previously utilised. The Bill is intended to address these issues to clarify the ability of the agencies to exercise their powers as before, in circumstances which the Government has stated is in accordance with the original policy intent.

ACC Examination Powers

The following is a summary of the current operation of ACC examinations.

An ACC examiner may conduct examinations as part of a special ACC operation/investigation.[8] The board of the ACC must determine work priorities and approve the use of coercive powers by naming the priorities as a special operation or a special investigation. Special operations focus on gathering intelligence on a particular criminal activity, while special investigations are designed not only to collect intelligence but also to disrupt and deter identified criminal groups through collecting evidence of criminal activity that may result in arrests and/or seizures of illegally obtained assets.

The examiner may conduct the proceedings as they see fit. They may allow legal practitioners to be present. They may determine when it is appropriate for a witness to be examined or cross-examined. And while proceedings must be held in private, a witness must be informed of any others who are present.[9]

The Evidence Act 1995 (Cth) does not apply to such an examination so common law rules of evidence, subject to the ACC Act provisions, apply.[10] The examiner may make such arrangements as are necessary to avoid prejudice to the safety of the person summoned, or protect them from intimidation or harassment.[11] The examiner has the same protection and immunity in exercising their functions as a Justice of the High Court of Australia.[12] The examiner is exempt from serving a record of written reasons for decisions to issue a summons under the ACC Act.[13]

Any report that sets out findings that an offence has been committed, or makes a recommendation to institute a prosecution, must not be made available to the public unless it is based on evidence that would be admissible in prosecution of a person for that offence.[14]

Examinations

Examiners have power to summon or compel witnesses to attend examinations and to give evidence on oath or affirmation when the Board has made a determination of a special operation or special investigation.[15] A person and their lawyer (if legal professional privilege does not apply)[16] must not fail to attend or answer questions, where it is proven that a valid summons was issued, under penalty of fines and/or imprisonment.[17]

The person may challenge the validity of the summons.[18] The person and their lawyer may also be held in contempt of the ACC if they fail to attend or answer questions.[19] It is an offence to obstruct or hinder the ACC (or an examiner) in the performance of their functions, or to disrupt an examination or threaten any person present at an examination before an examiner.[20] Double jeopardy does apply to offences under the ACC legislation and state, territory and Commonwealth offences.[21]

Examinations—self incrimination

A person appearing before an ACC examiner as a witness may not refuse to answer a question or produce a document or thing on the grounds of self-incrimination—that is, the privilege is abrogated.[22] Subsection 30(5) provides a ‘use immunity’ for a person who, before answering a question or producing a document or thing, claims that it might tend to incriminate them, or make them liable to a penalty. This type of immunity prevents self-incriminating information from being used directly as evidence against the person who provided it. The use immunity applies to criminal proceedings and proceedings for the imposition of a penalty, other than confiscation proceedings or proceedings relating to giving false evidence.[23] Derivative use immunity is not provided. This means that self-incriminatory material may still be used to obtain other evidence that would be admissible against the person. The ability to use derivative material from an examination does not automatically compromise a fair trial.[24]

The ACC Act does not include any special provisions relating to questioning of a person facing a current or imminent charge or proceedings. It does not exclude the ACC from questioning a person in such circumstances, nor does it explicitly allow it. As outlined separately in the ‘Committee consideration’ section of this Digest, a Parliamentary committee recommended amendments in 2005 to prevent the ACC from examining a person subject to criminal or confiscation proceedings on matters relevant to those proceedings. The courts have interpreted the existing provisions as not allowing this. This Bill expressly aims to ensure that such examinations are permitted.

Examinations—right to a fair trial

The right to a fair trial is generally accepted as a fundamental element of Australia’s criminal justice system, although the specific elements of the concept have not been judicially determined. The right is discussed in more detail in the ‘Issues’ section of this Digest.

Coercive powers, such as the compulsory examination powers of the ACC, may be considered to interfere with a person getting a fair trial as they may result in a person disclosing material which would not have been available to the prosecution during a judicial, rather than executive process. The person may also disclose material which could limit their options for conducting their own defence. This may thus provide a risk to the administration of justice.[25]

However, under the current provisions of the ACC Act, the prosecution does not necessarily gain an unfair advantage by the mere fact of the examination occurring as the examiner has the power, under section 25A of the ACC Act,[26] to prevent disclosure of the information obtained.[27] In other words, the safeguards provide that there is not necessarily a risk to the administration of justice simply due to a compulsory examination occurring.

The dissemination of evidence to a prosecuting authority will only compromise a trial if it is considered to prejudice a fair trial.[28] To force the accused to confess their guilt, give away information that may provide for their defence or explain their conduct relating to the charges, may be considered to prejudice a fair trial.[29]

Any dissemination is currently subject to and overridden by the examiner’s non-publication directions, consistent with the decision of Australian Crime Commission v OK [2010] FCAFC 61 where a majority of the Federal Court upheld the legislation.[30]

Examinations—Confidentiality

The ACC Act has several mechanisms designed to protect confidentiality. The examiner determines whether confidentiality applies to evidence that is given or the fact that a person is going to give evidence, and whether a non-publication direction should be given.[31] The examiner is required to do this when a disclosure might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.[32]

A court may require that evidence directed to be confidential or not published is made available to a person charged with an offence if it is desirable in the interests of justice.[33] The interests of justice have no definition, and can encompass a wide range of factors.[34]

Cases affecting the operation of the agencies

As outlined in the Explanatory Memorandum, several recent cases could affect the ACC’s use of its examination powers. These cases include:

·          Seller and McCarthy,[35] where the NSW Court of Criminal Appeal found that the use of evidence derived from examination material in criminal proceedings against the examinee could, in some circumstances, be unfair.

·          X7 v Australian Crime Commission (X7),[36] where a 3:2 majority of the High Court found that the ACC Act did not authorise the ACC to examine a person who had been charged with an offence about the subject matter of the charge (referred to here as a post-charge examination).  The majority noted that such an examination would affect the fairness of the examinee’s trial and could only be authorised if there were clear words indicating Parliament’s intention.

·          Lee No. 1,[37] where a 4:3 majority of the High Court found that the Criminal Assets Recovery Act 1990 (NSW) authorised the post-charge examination of a person.  The majority distinguished the decision in X7 on the basis that the relevant examination occurred as a result of a court order.

·          Lee No. 2,[38] where the High Court unanimously found that the NSW Crime Commission’s unlawful disclosure of the accused’s examination transcript to the prosecution rendered the trial fundamentally unfair and ordered a retrial.  The examination occurred before the accused was charged with an offence.[39]

According to the Explanatory Memorandum, these cases have had an impact on ACC operations. Following the decision in X7, for example, the ACC has stated that it no longer examines persons already charged with an offence if the questioning could touch upon related matters.

The decision in X7 will be discussed in more detail below, as it touches upon both the motivations for the current amendments and the balancing of rights and public interest in this area of criminal law.

X7 v Australian Crime Commission [2013] HCA 29

This case is one of the more important of the recent cases which not only affected the examination powers of the ACC and ACLEI, but clearly identified the ‘principle of legality’, which requires ‘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’.[40]

This Bill is intended establish this statutory intention and to clarify the operation of examinations by the agencies.

The X7 case is also important because it provides consideration of the possible constitutional issues which may arise as a result of post-charge examinations. In particular:

… the plaintiff's case was that the examination powers should be given a restricted meaning because their exercise after charge would otherwise constitute legislative authorisation of executive interference with pending criminal proceedings, and in particular an interference with due process entrenched by Ch III (including s 80) of the Constitution. As used by the plaintiff, "due process" encapsulated those rights of an accused, including the right to silence, designed to require the prosecution to prove its case without the assistance of the accused. In the event that the examination provisions, on their proper construction, did authorise examination after charge, that was said to involve an invalid attempt to confer the judicial power of the Commonwealth on the examiner.[41]

The majority in this case, Hayne and Bell JJ (with Kiefel J agreeing), found that, under the current ACC Act, an examiner does not have the power to require a person to answer questions regarding the subject matter of an offence that the person has been charged with (but not yet tried for), and that the above quoted constitutional Chapter III question regarding interference with real administration of justice did not arise.[42] French CJ and Crennan J also found that the examiner does not have the power to compel post-charge examination, but did consider the Chapter III question and determined that Chapter III is not violated.[43] Their Honours explained that:

If there is some failure to employ the protective provisions such that the prosecution would obtain an unfair forensic advantage, a trial court's inherent power to punish for contempt, including a power to restrain a threatened contempt, would be available, as in Hammond. A failure by an examiner to give any, or any adequate, direction under s 25A(9), or an error by the CEO in exercising the power to revoke or vary a direction under s 25A(10), would also be remediable by recourse to the constitutional writs issued pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth).

These considerations show that the examination provisions do not authorise executive interference with the curial process of criminal trials (footnotes omitted).[44]

The Court considered that other constitutional arguments could also be rejected:

The plaintiff's main submission in relation to Ch III, that the examination provisions are invalid as a legislative authorisation of executive interference with the curial process of criminal trials for Commonwealth indictable offences, has been addressed, and answered, in the reasons above. There were two other submissions concerning Ch III which have not been dealt with so far.

The plaintiff's submission that the privilege against self-incrimination is a necessary part of trial by jury under s 80 of the Constitution must be rejected. In Sorby, members of the Court agreed with a unanimous conclusion reached earlier in Huddart, Parker, that the privilege against self-incrimination is not a necessary part of trial by jury. A view to the contrary expressed by Murphy J, which his Honour advanced earlier in Hammond, has not commanded any subsequent assent and must be rejected.

The plaintiff's further submission, that s 25A(9) empowers an examiner to exercise judicial power, must also be rejected. Executive inquiries into facts, the subject of pending proceedings, do not involve an exercise of judicial power – those conducting such inquiries are unable to make any final determination as to the facts or to apply the law to them (footnotes omitted).[45]

Justices Hayne and Bell approached consideration of the ACC Act by stating that it is not relevant whether compulsory examination meets some general standard of fairness,[46] but rather stated that the ACC Act cannot be considered to authorise anything which would amount to contempt.[47] The investigation, prosecution and trial of an indictable Commonwealth offence demonstrates that, at every stage, the process of criminal justice is accusatorial and that the Crimes Act provides that:

… if a person is under arrest for a Commonwealth offence, "an investigating official" (which includes a member of the Australian Federal Police and a member of the police force of a State or Territory) "must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence". Section 23F(3) provides that the obligation imposed by s 23F(1) to administer a caution does "not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official".

Section 23F, with its requirement that, in general, persons under arrest for Commonwealth offences are to be cautioned that they need not say or do anything, is, of course, an important manifestation of an accused's right to silence (footnotes omitted).[48]

It is against this background that the ACC Act compulsory examination power would, if it existed post-charge, affect a fundamental alteration to the process of criminal justice[49] and therefore the deliberate impact on the accusatorial process must be made clear in the statute.[50]

As regards the balancing of the public interest with the abrogation of certain rights, Chief Justice French and Crennan J stated that the examination provisions do not authorise executive interference in criminal trials,[51] and:

The functions of the ACC, which include the investigation of serious and organised crime, serve a public interest which is apparent from the ACC Act. An examination cannot be held for a purpose other than the purpose of investigating serious and organised crime, which remains the same whether a criminal charge has been laid or not. It is consistent with the purpose of the compulsory examination powers, which aid the functions of the ACC, that those powers are not exhausted upon the laying of a charge against an individual. The ACC Act reflects a legislative judgment that the functions of the ACC would be impeded if the laying of a charge against one member of a group by a prosecutor prevented continuing investigation of the group's activities by way of examination of that member by the ACC.

To summarise, the public interest in the continuing investigation of serious and organised crime is elevated over the private interest in claiming the privilege against self-incrimination. However, whilst a person examined under the ACC Act is compelled to give an answer, or produce a document or thing, which might otherwise be withheld because of the privilege against self-incrimination, the interest in that person being tried openly and fairly is protected both by the prohibition on direct use of answers given, or documents or things produced, and by the provisions safeguarding the fair trial of that person.[52]

Legislative position of comparable state agencies

In most instances, individuals required to provide information or evidence to state crime and integrity commissions may not refuse to answer a question or produce a document or thing on the grounds of self-incrimination. Except under the Integrity Commission Act 2009 (Tas), under which all claims of privilege are decided by the Supreme Court, the privilege against self-incrimination is abrogated and a use immunity (but not a derivative use immunity) applies.[53] The legislation governing five of those agencies explicitly addresses the issue of questioning a person facing proceedings, and differs in approach. In particular:

•       the New South Wales Crime Commission may only question a person facing a ‘current charge’ on matters relevant to the charge if the Supreme Court grants leave to do so

•       the Crime and Corruption Commission (Queensland) may question a person on matters relevant to current criminal proceedings against them

•       the Corruption and Crime Commission (Western Australia) may not question a person about matters relevant to an offence with which the person ‘stands charged’

•       the Independent Commissioner Against Corruption (South Australia) may exercise its powers despite any current investigation, prosecution, proceedings or charges relating to a matter and

•       the Tasmanian Integrity Commission must not require a person to give evidence relevant to a matter for which they have been charged.[54]

Where the legislation permits questioning of a person charged with an offence or facing proceedings, some additional safeguards are generally included. Further detail is set out in the Appendix to this Digest.

The Acts governing the Independent Commission Against Corruption and the Police Integrity Commission (both NSW) and the Independent Broad-based Anti-corruption Commission (Victoria), like the ACC Act and the LEIC Act, are silent on the matter.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Senate Legal and Constitutional Affairs Legislation Committee tabled its report on the Bill on 18 June 2015.[55] The majority of the Committee, chaired by Senator Ian Macdonald, did not recommend any changes to the Bill.[56]

The dissenting report of the Australian Greens[57] recommended that the Bill not be passed in its current form, and supported the position of the Law Council of Australia that the Government should:

•       undertake a comprehensive review of the ACC Act to consider whether it provides for investigative powers while also protecting common law rights and

•       clarify that all the provisions of the Bill are within the constitutional legislative power of the Commonwealth.[58]

Parliamentary Joint Committee on the Australian Crime Commission

The Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC; now the Parliamentary Joint Committee on Law Enforcement) reported on a review it conducted of the ACC Act in November 2005.[59] The PJC-ACC noted that it was unclear under the ACC Act whether an examiner was permitted to question a person facing criminal or confiscation proceedings on matters relevant to those proceedings. It considered the position should be clarified as a matter of priority—but not in the way proposed in the current Bill:

The Committee recommends that the Attorney-General's Department and the Australian Crime Commission develop legislation as a matter of urgency to ensure that a person summonsed by the ACC, at a time when they are the subject of criminal or confiscation proceedings, may only be examined in relation to matters quarantined from those material to the pending proceedings.[60]

The Government of the time did not respond to the report. A response provided in May 2010 by the Rudd Government supported the recommendation.[61]

Policy position of non-government parties/independents

The Australian Labor Party supported the majority recommendation in the Senate Standing Committee on Legal and Constitutional Affairs report on the Bill.

As noted in the ‘Committee consideration’ section of this Digest, the Australian Greens did not support the majority report, and delivered a dissenting report recommending that the Bill be not be passed in its current form.[62]

Position of major interest groups

The Australian Human Rights Commission (AHRC) noted that:

The point at which a person is charged with a criminal offence marks a significant change in the criminal process from the investigation of a criminal offence to its prosecution. The laying of a charge marks the first step in engaging the exclusively judicial task of adjudicating and punishing criminal guilt.

The conduct of an inquiry, particularly a compulsory examination, in parallel to a person’s criminal prosecution would ordinarily constitute a contempt of court because the inquiry presents a real risk to the administration of justice.[63]

The AHRC submitted that if this were to occur, stronger safeguards should be provided to ensure that post-charge examination and derivative material is not provided to the prosecution in cases relating to examined matters.[64] The AHRC made various recommendations to amend the Bill, in particular proposed sections 25C, 25D, 25H, 25A(9A) of the ACC Act and the related sections of the LEIC Act, in order to remove the ability for such information to be provided to prosecutors.

The Law Council of Australia (LCA) does not believe that the Bill should be passed in its present form, and made several recommendations designed to protect the right to a fair trial.[65] In particular, the LCA recommended that examination should be deferred until charges had been dealt with, or, in the alternative, that mechanisms be put in place to limit examinations and the disclosure of related information. The LCA also called for a comprehensive review of the ACC Act.

In response to a current Australian Law Reform Commission Inquiry into Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, some interest groups have expressed opposition to the existing powers of the ACC to conduct coercive examinations and utilise derivative evidence in prosecutions. These groups say that such powers unjustifiably contravene the rights to natural justice, a fair trial, and the privilege against self-incrimination.[66]

However, other submissions to the Inquiry noted the long history of parliamentary supremacy in excluding these rights in certain circumstances. The submissions asserted that this is appropriate where the exclusion is proportionate and necessary, and where it appropriately balances the rights of the individual with the needs of public policy.[67]

Financial implications

The Explanatory Memorandum states that there are no financial implications from this Bill. If the measures introduced in the Bill alter investigative or examination decision making, some indirect impact on agency budgets may occur.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[68]

The Explanatory Memorandum notes that the measures in this Bill engage the following human rights, but that the Government considers that ‘to the extent that the measures in those Schedules may limit human rights, those limitations are necessary, reasonable and proportionate’:[69]

·          the right to a fair trial and a fair hearing under article 14 of the International Covenant on Civil and Political Rights (ICCPR)

·          minimum guarantees in criminal proceedings under article 14(3) of the ICCPR

·          the prohibition on interference with privacy under article 17 of the ICCPR, and

·          the right to freedom of expression under article 19(2) of the ICCPR.[70]

Key provisions

The key provisions of the Bill will explicitly allow examiners to ‘conduct an examination of a person who has been charged with an offence and to ask that person questions that relate to the subject matter of the charge.’ The provisions balance this with a set of safeguards about the ways in which such information may be used, with the specific intention of maintaining the right to a fair trial.

As set out in the Explanatory Memorandum, Part 1 of Schedule 1 will amend the ACC Act to clarify the coercive powers of ACC examiners. It will enable an ACC examiner to conduct an examination of a person who has been charged with an offence and to ask that person questions that relate to the subject matter of the charge. Part 1 will specifically enable the ACC and its Australian law enforcement agency partners to use examination material to obtain derivative evidence against the examinee and others, and will set out the circumstances in which this material may be used in criminal and other proceedings against the examinee.

Part 1 of Schedule 1 will also clarify the safeguards that apply to examinations that are intended to ensure that the operation of the examinations does not affect the fair trial of the examinee. These safeguards are intended to:

•       clarify the circumstances in which an ACC examiner must issue a direction to ensure the confidentiality of evidence given at an examination

•       restrict the circumstances in which examination material may be provided to the persons prosecuting an examinee and

•       ensure that courts continue to have appropriate powers to ensure that examination material and material derived from it do not prejudice the examinee’s fair trial.

This Part will also clarify when ACC examiners may conduct examinations in the context of confiscation proceedings against the examinee under the Proceeds of Crime Act 2002 (POC Act) and equivalent state and territory legislation, as well as the circumstances in which examination material may be used in such proceedings. These measures implement recommendations 3 and 4 of the 2012 report of the Parliamentary Joint Committee on Law Enforcement’s (PJCLE) on its inquiry into Commonwealth unexplained wealth legislation and arrangements.[71] These recommendations called for ACC examinations and material to be used as evidence in support of unexplained wealth proceedings under the POC Act, and for examinations to take place after a restraining order has been made by a court.

In particular, item 12 of Schedule 1 will add proposed subsection 24A(2) which will explicitly allow an examiner to conduct an examination pre-charge, post-charge, pre-confiscation application or post-confiscation application. Item 13 will insert proposed subsections 25A(6A) and (6B) which will specifically authorise questioning related to the subject matter of the offence with which the examinee has been charged or to the confiscation proceedings. Together these provisions are intended to respond to the decision in the X7 case, as discussed above.

Items 14 to 16 will provide for limitations on the confidentiality and dissemination of examination and derivative material, and the use of examination material to obtain derivative material. These provisions are stated to be intended to safeguard, as far as practical, the conduct of a fair trial. The details of the specific limitations to be introduced by items 14 to 16, and the circumstances to which they would apply, are outlined in the table reproduced below under ‘Issues.’

Proposed section 25E provides specifically for a court’s powers to ensure a fair trial. While this section allows the court to order the disclosure of examination or derivative material, such disclosure must be in the interests of justice. Furthermore, proposed subsection 25E(4) states that a trial will not be unfair merely because a person has been an examinee, regardless of whether the examination occurred before or after the charges were brought. In addition, proposed subsection 25E(3) affirms that the new provisions do not restrict a court’s power to make orders to ensure that a fair trial is not prejudiced by the possession or use of examination or derivative material by a prosecutor.

Part 2 of Schedule 1 will move the provisions relating to an examiner’s power to issue a notice to produce documents or things from Division 2 of Part II of the ACC Act, which is about examinations, into Division 1A of Part II, which is about the performance of the ACC’s functions and the exercise of its powers.

This Part will make clear that a notice to produce is a mechanism for gathering information that is different from an examination. It will confirm the position, under current subsection 29(2), that the notice to produce must relate to a special operation or special investigation. It does not require an examiner to be holding an examination for the purposes of that operation or investigation.

Schedule 2, structured similarly to Schedule 1, proposes similar amendments to the LEIC Act to clarify the powers of the Integrity Commissioner to conduct coercive hearings. These amendments will enable the Integrity Commissioner to conduct a hearing and question a witness who has been charged with an offence and to ask that person questions that relate to the subject matter of the charge. The Schedule will specifically enable the Integrity Commissioner, ACLEI and other bodies to use hearing material to obtain derivative evidence against the witness and others, and will set out the circumstances in which this material may be used in criminal and other proceedings against the witness.

Schedule 2 will also clarify the safeguards that apply to hearings. These safeguards are intended to ensure that hearings do not affect the fair trial of the witness. These safeguards are intended to:

•       clarify the circumstances in which the Integrity Commissioner must issue a direction to ensure the confidentiality of evidence given at a hearing

•       restrict the circumstances in which hearing material may be provided to the persons prosecuting a witness, and

•       ensure that courts continue to have appropriate powers to ensure that hearing material and material derived from it do not prejudice the witness’s fair trial.

This Schedule also clarifies when the Integrity Commissioner may conduct hearings in the context of confiscation proceedings against the witness under the POC Act and equivalent state and territory legislation, as well as the circumstances in which hearing material may be used in such proceedings.

Schedule 2 also makes a range of amendments to improve the effectiveness of hearings and make the consequences for breaching confidentiality provisions in relation to hearings more consistent with similar Commonwealth legislation.

Issues

The stated intent of the Bill is to clarify the coercive powers of the ACC and ACLEI in the course of conducting examinations. The key issues involved are the need to balance this intent with accepted principles such as the common law rights against self-incrimination and to a fair trial, as discussed in the Background section of this Digest.

In light of recent court decisions which essentially abrogated the powers of the agencies in the absence of express legislative intent, this Bill is aiming to amend the relevant legislation to make that intent clear as relating to the powers of examination. Furthermore, the clauses of the Bill which restrict the release and use of the information gained from examinations are directed to ensuring the integrity of any related criminal justice process.

The requirement for courts to consider rights when interpreting legislation is recognised to be important but limited by legislative intent. Regarding this principle of legality,[72] Justices Gageler and Keane said in Lee v New South Wales Crime Commission (2013) that, as well as protecting common law rights, the principle ‘extends to the protection of fundamental principles and systemic values’.[73]

However, such application or consideration of rights and principles is only possible where the legislative intent to encroach on the rights or principles at issue is not clear, or is expressed in general language. Parliamentary supremacy over the principle of legality is well established. As Justices Gageler and Keane also noted:

The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked.[74]

The current Bill is expressly intended to clearly articulate the intent to grant powers to the ACC and ACLEI which might otherwise be questioned according to the principle of legality.

Rights against self-incrimination and to a fair trial

The right to a fair trial is generally accepted as a necessary element of Australia’s criminal justice system, although the specific elements of the concept have not been judicially determined. As the High Court noted:

There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.[75]

An important aspect of a fair trial is the principle that the same procedural rights are to be provided to the prosecutor and defendant unless differences can be justified on objective and reasonable grounds, and do not result in disadvantage or unfairness to the defendant.[76]

The intent of the Bill is to clarify the coercive powers of the ACC and ACLEI in the course of conducting examinations, particularly in light of the above cited recent decisions. The Bill would specifically permit coercive examinations to override the right against self-incrimination in instances where an examination of a person who has been charged with an offence may touch upon matters related to the charge. The Bill would also permit examination material to be used to obtain derivative evidence which may be used against a person. The justification for the exclusion of rights is therefore an issue of primary importance.

As outlined by the court in X7 in the excerpt above,[77] situations involving compulsory examinations require the balancing of the genuine public policy need to acquire certain information, and hence to remove a person’s right against self-incrimination, with the maintenance of the right to a fair trial. The examination of matters related to contemporaneous charges and the use of evidence derived from such examinations may both impinge upon these rights.

The Government states in the Explanatory Memorandum that the amendments are not intended to prejudice the fairness of a trial, and that the Bill includes various safeguards to protect this. Specifically, the amendments are:

… intended to ensure that examinations and the disclosure of examination and derivative material do not prejudice the fairness of any trial of the examinee.  They achieve this in a number of ways.  An examiner will still be required to issue a direction to ensure the confidentiality of examination material where its disclosure would, amongst other things, prejudice the examinee’s fair trial, in circumstances where he or she has been charged with an offence, or such a charge is imminent.  The amendments also place a range of limitations on the circumstances in which examination and derivative material may be provided to a person prosecuting the examinee, in addition to the general secrecy and disclosure provisions which apply to all ACC information.  The limitations that apply to the disclosure of examination and derivative material depend on the time at which the examination occurred, and the time at which the material is disclosed, with the determining factor being whether or not the person has been charged with an offence (or such a charge is imminent). 

These additional limitations are set out in the below table:

Material

Position on disclosure to prosecutor

Pre-charge examination material disclosed pre-charge

Can be disclosed if non-disclosure direction allows it

Pre-charge derivative material disclosed pre-charge

No additional limitation on disclosure

Pre-charge examination material disclosed post-charge

Can only be disclosed with a court order

Pre-charge derivative material disclosed post-charge

No additional limitation on disclosure

Post-charge examination material

Can only be disclosed with a court order

Post-charge derivative material

Can only be disclosed with a court order

Further, the amendments in Part 1 are intended to make it clearer that examinations have an important role in ACC special operations and special investigations, and are not used simply to bolster the prosecution’s case against an accused, although information derived from information obtained in an examination may be used to assist in the examinee’s prosecution.[78] 

While the safeguards noted above may have the intended effect and appropriately quarantine examination and derived material from the prosecution and court, the very act of providing material during an examination may affect a person’s right to a fair trial by limiting their options in their own defence, the principle of ‘equality of arms’. As noted by Hayne and Bell JJ in X7,

Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered.[79]

Their Honours then accepted the possibility of such an alteration being made by the legislature:

An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.[80]

While the proposed provisions do preserve a court’s power to make any orders necessary to prevent the prejudicing of a fair trial by the ‘possession or use of examination material or derivative material’,[81] the Bill provides that a trial is not unfair simply because a person has been examined.[82] In this way the Bill addresses the requirement for express words or necessary intendment, as stated by the court, and will allow for impingement of the right to a fair trial.

The Australian Law Reform Commission has considered possible justifications for the exclusion of the right against self-incrimination, and the consequent impact on trials, noting that:

The High Court has on several occasions held that the privilege is not immutable and can be abrogated in order to balance competing rights and the public interest:

‘The legislatures have taken this course when confronted with the need, based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained.’

The ALRC further stated that:

This public interest may be enlivened in circumstances where the information gleaned from a witness or defendant as a result of suspending the privilege reveals an issue of major public importance that has a significant impact on the community in general or on a section of the community. For example, an inquiry or investigation into allegations of major criminal activity, organised crime or official corruption or other serious misconduct by a public official in the performance of his or her duties might justify the abrogation of the privilege. (footnotes omitted)[83]

Retrospectivity

The application of the majority of the functional provisions in the Bill have been defined to be ‘at or after‘ commencement. This includes the application of the new provisions to disclosures, acts or evidence, regardless of whether they result from an examination which was conducted prior to commencement.[84]

The effect of this is primarily that any use or restriction on use of material obtained at an examination will be controlled according to the new provisions, regardless of whether the material was obtained at an examination prior to commencement. This may have some limited impact on any cases which involve charges laid prior to the date of commencement and where a post charge examination had also occurred before commencement. In such instances an examinee may have believed that the fact of the post charge examination would have an effect on the proceedings in light of the recent decisions. This will, however, not be the case after commencement.

Australian courts have accepted that legislative actions may legitimately have an impact on pending proceedings, as Chief Justice French and Justices Crennan and Kiefel recently affirmed:

It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.[85]

No retrospective offences would be created by the Bill. The new provisions that provide offences such as those relating to the disclosure of material would only apply to a disclosure that occurred at or after commencement.

Constitutional Validity—Severability clauses

As noted above, the X7 case discussed and dismissed many potential constitutional issues surrounding compulsory examination.[86] Nevertheless, many of the proposed provisions in the Bill include severability clauses[87] which, in the event that proposed provisions or aspects were found to be unlawful, would allow the Act to continue operating as if it were confined to operations which had not been struck down or as if the invalid provisions had not been enacted.

The NSW DPP raised concerns that while the Bill goes some way to returning clarity to the powers of the ACC, the presence of these severability clauses indicates legal uncertainty in each of the relevant provisions.[88] The NSW DPP was also concerned that each of these potentially severable provisions may remain legally uncertain until tested by the courts, thus continuing to pose issues for prosecuting agencies.

Concluding comments

The amendments proposed in the Bill will clarify the application of the compulsory examination powers of the ACC and ACLEI. They will provide the express words and clear intent which recent decisions have indicated are required to permit persons who have been charged with an offence to be examined on matters related to the offence.

The proposed amendments will also introduce measures intended to protect the processes of justice and the right to a fair trial by limiting the uses to which examination and derived material may be used. However, the amendments would unavoidably alter the process of a trial by limiting an examinee’s defence options.

Despite the limitations which would be placed on an examinee’s rights, the Government considers the proposed amendments to be a proportionate response to the public policy requirement for combatting serious and organised crime and law enforcement corruption. Other stakeholder groups have stated that the rights to a fair trial and against self-incrimination are not appropriately protected under the proposed changes.

Appendix: Comparison of current ACC and ACLEI legislation and comparable state agencies

Agency
Legislation

Self-incrimination—general

Immunities—general

Special provisions

Self-incrimination under special provisions

ACC

Abrogated by implication (30(2), (4) and (5))

Use immunity (with some exceptions) if the person claims an answer or the production of a document or thing would tend to incriminate him or her (30(4) and (5))

None at present

N/A

ACLEI

Abrogated (80 (1) and 96(1))

Use immunity (with some exceptions) (80(3) and (4) and 96(3) and (4))

None at present

N/A

New South Wales Crime Commission
Crime Commission Act 2012

Abrogated (39(1))

Use immunity (with some exceptions) if the person objects on the grounds of self-incrimination (39(2) and (3) and 39A), or if a declaration is made that everything provided by a witness is taken to have been provided on objection (39(6))

A person facing a ‘current charge’ as defined in subsection 4(1B) may only be questioned on matters relating to the subject matter of the offence if leave is granted by the Supreme Court (35A).
The Supreme Court may grant leave (unconditionally or subject to conditions) if satisfied that any prejudicial effect is outweighed by the public interest in using its powers to ensure a particular matter is fully investigated (35A(5) and (6)).
Additional protections are also provided under sections:

21A (directions as to the presence of certain persons at hearings)
45A (limits on disclosure of evidence)
45C (matters a court must consider if an application if made for a stay of proceedings

Use immunity applies (35A(3)).

Derivative use immunity applies only in relation to the particular offence that was the subject of the current charge. Information given by a person subject to a current charge may be used to derive evidence against the person of a different offence (39A (3) and (4)).

Queensland Crime and Corruption Commission
Crime and Corruption Act 2001

Corruption investigations
Abrogated (188(3) and 192(2))
Crime investigations and intelligence functions
Abrogated (185(2) and 194)

Corruption investigations
Use immunity provided (with some exceptions) for answers provided at a hearing if, before answering, the person objects on the grounds of self-incrimination (197) or if a declaration is made that everything provided by a witness is taken to have been provided on objection (197(5))
Crime investigations and intelligence functions

Use immunity (with some exceptions) if the person objects on the grounds of self-incrimination (194 (2) and 197), or if a declaration is made that everything provided by a witness is taken to have been provided on objection (197(5)

The Commission may use its powers despite any proceedings (331)(where a proceeding for a criminal offence is taken to be in or before a court from the moment a charge is laid (331(4)). It is also explicitly empowered to require a person to answer a question or produce a document or thing, relevant to current criminal proceedings (331(4)(b)).
If the proceeding in question is for an indictable offence and is conducted by or for the state, the Commission must take certain steps if the person’s right to a fair trial might otherwise be prejudiced, in particular (331(2)):
conducting closed hearings
give a non-publication direction under section 202 and/or
make a non-publication order under subsection 180(3).

No specific provisions made

Western Australian Corruption and Crime Commission
Corruption and Crime Commission Act 2003

Abrogated for statements of information required from public authorities or public officers (94) and answers, documents or things provided by any person (157–160)

Use immunity (with some exceptions) provided for statements of information required from public authorities or public officers (94(5) and (6))
Use immunity (with some exceptions) provided for answers given (145)
No provision appears to be made for use immunity for documents and other things provided under section 95 or 96

The Commission may not question a person answering an organised crime summons about matters relevant to an offence with which the person ‘stands charged’ (50)

N/A

NSW Independent Commission Against Corruption
Independent Commission Against Corruption Act 1988

Abrogated by implication for investigations (26) and explicitly for compulsory examinations and public inquiries (37(2))

Use immunity (with some exceptions) provided where a person provides information in response to a notice given under section 21 or 22, if the person claims at the time that the statement, document or thing would tend to incriminate them (26).
Use immunity (with some exceptions) provided for answers, documents and things provided in response to a summons or at a compulsory hearing or public inquiry, if the person claims at the time that the statement, document or thing would tend to incriminate them (37(3) and (4)) or if a declaration is made that everything provided by a witness is taken to have been provided on objection (38)

None

N/A

Victorian Independent Broad-based Anti-corruption Commission
Independent Broad-based Anti-corruption Commission Act 2011

Abrogated (144(1))

Use immunity provided (with some exceptions) (144 (2))

None

N/A

South Australian Independent Commissioner Against Corruption
Independent Commissioner Against Corruption Act 2012

Abrogated by implication (8(2), (4) and (5))

Use immunity provided (with some exceptions) (8(4) and (5) of Schedule 2)

The Commission may use its powers in relation to a particular matter, despite the referral of the matter for prosecution or investigation or prosecution, institution of proceedings, or the charging of a person with an offence (43).
In such cases, it must ‘endeavour to avoid, as far as practicable, prejudice to any person affected by the referral or who is charged with the offence’ (43)

No specific provisions made

Tasmanian Integrity Commission
Integrity Commission Act 2009

Retained (92). Claims of privilege, including that against self-incrimination (see definition in section 4), may lead to withdrawal of a requirement to answer a question or provide information, a document or thing. If it is not withdrawn, a notice is issued that a person must either comply with, or apply to the Supreme Court to determine the claim.

N/A

A person must not be required to give evidence about a matter if he or she has been charged with a crime or offence in respect of that matter (93)

N/A

NSW Police Integrity Commission
Police Integrity Commission Act 1996

Abrogated by implication notice to produce powers (28) and explicitly for answers, documents or things required at a hearing to which a person has been summonsed (40(1) and (2))

Use immunity (with some exceptions) provided where a person provides information in response to a notice given under section 25 or 26, if the person claims at the time that the statement, document or thing would tend to incriminate them (28).
Use immunity (with some exceptions) provided for answers, documents and things provided in response to a summons or at a hearing, if the person claims at the time that the statement, document or thing would tend to incriminate them (40)(3) and (4)), or if a declaration is made that everything provided by a witness is taken to have been provided on objection (41).

None

N/A

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[1].              Australian Crime Commission Act 2002 (Cth), accessed 11 June 2015.

[2].              Law Enforcement Integrity Commissioner Act 2006 (Cth), accessed 1 May 2015.

[3].              Public Interest Disclosure Act 2013 (Cth), accessed 1 May 2015.

[4].              R v Seller; R v McCarthy [2013] NSWCCA 42, accessed 1 May 2015.

[5].              X7 v Australian Crime Commission [2013] HCA 29, accessed 1 May 2015.

[6].              Lee v The NSW Crime Commission (2013) 302 ALR 363 (‘Lee No. 1’), [2013] HCA 39, accessed 1 May 2015.

[7].              Lee v The Queen (2014) 308 ALR 252 (‘Lee No. 2’), [2014] HCA 20, accessed 1 May 2015.

[8].               Australian Crime Commission Act 2002 (Cth), section 24A.

[9].               Australian Crime Commission Act 2002 (Cth), section 25A(2)-(8).

[10].               Evidence Act 1995 (Cth) section 4; Australian Crime Commission v Stoddart (2011) 244 CLR 54, 621; [2011] HCA 47 [178] (Crennan, Kiefel and Bell JJ); both accessed 4 May 2015.

[11].               Australian Crime Commission Act 2002 (Cth), section 34.

[12].               Ibid., section 36.

[13].               C Incorporated v Australian Crime Commission [2010] FCAFC 4 [96]; GG v Australian Crime Commission [2010] FCAFC 15 [28], accessed 17 June 2015.

[14].               Australian Crime Commission Act 2002 (Cth), section 59AD.

[15].               Ibid., subsections 28(1)-(3).

[16].               See also in context of discovery applications in the Federal Court: Hogan v Australian Crime Commission (2010) 240 CLR 651, 658, 666-667; [2010] HCA 21 [3], [40]-[44], accessed 17 June 2015.

[17].               Australian Crime Commission Act 2002 (Cth) section 30(1)-(3), 30(6)-(8); Australian Crime Commission v Marrapodi [2012] WASCA 103,
[39]-[41] (McLure P), [100]-[104] (Allanson J), accessed 17 June 2015.

[18].               Australian Crime Commission v Marrapodi [2012] WASCA 103, [46]-[48] (McLure P), [110], [127]-[143] (Allanson J), accessed 17 June 2015.

[19].               Australian Crime Commission Act 2002 (Cth), section 34A-34E.

[20].               Ibid., section 35.

[21].               Ibid., section 35A.

[22].              Ibid., subsections 30(2) and (4).

[23].              Ibid., subsection 30(5).

[24].               R v Seller; R v McCarthy [2013] NSWCCA 42, [102] (Bathurst CJ), [119] (McClellan CJ at CL), [121]-[123] (Rothman J), accessed 17 June 2015.

[25].               Australian Crime Commission v OK [2010] FCAFC 61 [7]-[9], [56], [63]-[64] (Spender J, dissenting), accessed 17 June 2015.

[26].               Australian Crime Commission v OK [2010] FCAFC 61 [103]-[114]; Bartlett v The Queen [2012] WASC 503 [125]-[131]; R v CB; MP v the Queen [2011] NSWCCA 264 [100], [103], [110]-[111] (McClellan CJ at CL), accessed 17 June 2015.

[27].               Ibid., [75], [103]-[105] (Emmett and Jacobson JJ); Bartlett v The Queen [2012] WASC 503 [86], accessed 17 June 2015.

[28].               R v Seller; R v McCarthy [2013] NSWCCA 42, [102]-[106], [110]-[117] (Bathurst CJ), [119] (McClellan CJ at CL). Compare Rothman J’s remarks at [134]-[135], accessed 17June 2015.

[29].               Ibid., [102]-[106] (Bathurst CJ), [119] (McClellan CJ at CL). Compare Rothman J’s remarks at [134]-[135].

[30].               Australian Crime Commission Act 2002 (Cth), section 59AC; Explanatory Memorandum, Bartlett v R [2012] WASC 503 [96]-[106].

[31].               Australian Crime Commission Act 2002, section 25A(9)-(11), 25A(14).

[32].               Ibid., section 25A(9)-(11).

[33].               Ibid., section 25A(12)-(13).

[34].               R v Munro [2013] ACTSC 14 [15]-[16], accessed 17 June 2015.

[35].              R v Seller; R v McCarthy [2013] NSWCCA 42.

[36].              X7 v Australian Crime Commission [2013] HCA 29.

[37].              Lee v The NSW Crime Commission (2013) 302 ALR 363 (‘Lee No. 1’) [2013] HCA 39.

[38].              Lee v The Queen (2014) 308 ALR 252 (‘Lee No. 2’) [2014] HCA 20.

[39].              Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015, pages 28, 29, accessed 1 May 2015.

[40].              X7 v Australian Crime Commission [2013] HCA 29, [158] per Kiefel J.

[41].              Ibid., [21] (French CJ and Crennan J).

[42].               Ibid., [2013] [69]-[71], [146]-[156] (Hayne and Bell JJ), [157]-[162] (Kiefel J).

[43].               Ibid., [66] (French CJ and Crennan J).

[44].              Ibid., [59]-[60].

[45].              Ibid,, [63]-[65].

[46].               Ibid., [88]-[94] (Hayne and Bell JJ).

[47].               Ibid., [95] (Hayne and Bell JJ).

[48].              Ibid., [107]-[108].

[49].               Ibid., [118] (Hayne and Bell JJ).

[50].               Ibid., [124]-[125] (Hayne and Bell JJ).

[51].               Ibid., [52]-[60] (French CJ and Crennan J).

[52].               Ibid., [29]-[30] (French CJ and Crennan J).

[53].              Crime Commission Act 2012 (NSW), sections 39 and 39A; Crime and Corruption Act 2001 (Qld), sections 185, 188, 192, 194, 197; Corruption and Crime Commission Act 2003 (WA), sections 94, 145, 157–160; Independent Commission Against Corruption Act 1988 (NSW), sections 26, 37, 38; Independent Broad-based Anti-corruption Commission Act 2011 (Vic), section 144; Independent Commissioner Against Corruption Act 2012 (SA), clause 8 of Schedule 2; Integrity Commission Act 2009 (Tas), section 92; Police Integrity Commission Act 1996 (NSW), sections 28, 40, 41; all accessed 19 June 2015.

[54].              Crime Commission Act 2012 (NSW), section 35A; Crime and Corruption Act 2001 (Qld), section 331; Corruption and Crime Commission Act 2003 (WA), section 50; Independent Commissioner Against Corruption Act 2012 (SA), section 43; Integrity Commission Act 2009 (Tas), section 93.

[55].              Senate Legal and Constitutional Affairs Legislation Committee, Law Enforcement Legislation Amendment (Powers) Bill 2015 [Provisions], The Senate, Canberra, June 2015, accessed 18 June 2015.

[56].              Ibid., p. 19.

[57].              Ibid., pp. 21–25.

[58].              Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 4 June 2015, accessed 17 June 2015.

[59].              Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC), Review of the Australian Crime Commission Act 2002, The Senate, Canberra, November 2005, accessed 19 June 2015.

[60].              Ibid., p. 26.

[61].              Australian Government, Government response to the Parliamentary Joint Committee on the Australian Crime Commission report: review of the Australian Crime Commission Act 2002, recommendation 1, tabled 13 May 2010, accessed 19 June 2015.

[62].              Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 25.

[63].              Australian Human Rights Commission, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 5 June 2015, p. 12, accessed 17 June 2015.

[64].              Ibid.

[65].              Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Law Enforcement Legislation Amendment (Powers) Bill 2015, op. cit., p. 12.

[66].              Australian Law Reform Commission (ALRC), ‘Freedoms inquiry: submissions’, ALRC website, accessed 19 June 2015. See, for example, submission 49; Institute of Public Affairs, and submission 75; Law Council of Australia.

[67].              Ibid., see submission 57; Office of the Australian Information Commissioner, and submission 74; ASIC.

[68].              The Statement of Compatibility with Human Rights can be found at pages 6–26 of the Explanatory Memorandum to the Bill.

[69].              Ibid., p. 26.

[70].              Ibid., p. 9.

[71].              Parliamentary Joint Committee on Law Enforcement (PJCLE), Inquiry into Commonwealth unexplained wealth legislation and arrangements, March 2012, pp. 6–9, accessed 19 June 2015.

[72].              For a more complete discussion of the principle of legality, common law rights and encroachments on them, see Australian Law Reform Commission, Traditional rights and freedoms—encroachments by Commonwealth laws, Issues paper no. 46, December 2014, accessed 7 May 2015.

[73].              Lee v New South Wales Crime Commission (2013) 302 ALR 363, [2013] HCA 39, [313], accessed 22 June 2015.

[74].              Lee v New South Wales Crime Commission (2013) 302 ALR 363, [2013] HCA 39, [314].

[75].              Dietrich v R (1992) [1992] HCA 57, 177 CLR 292 at 300 per Mason CJ and McHugh J; 109 ALR 385; 67 ALJR 176.

[76].              Australian Human Rights Commission, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Law Enforcement Legislation Amendment (Powers) Bill 2015, op. cit., p. 7.

[77].              X7 v Australian Crime Commission [2013] HCA 29, [29]-[30] (French CJ and Crennan J).

[78].              Explanatory Memorandum, op. cit., pp. 29–30.

[79].              X7, op. cit., [71].

[80].              Ibid., [71].

[81].              See Schedule 1, clause 16, proposed section 25E of the ACC Act and Schedule 2, clause 29, proposed section 96AD of the LEIC Act.

[82].              Ibid.

[83].              Australian Law Reform Commission, op. cit., p. 78, citing Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 [1993] HCA 74, 503 (Mason CJ and Toohey J). See also, Sorby v The Commonwealth (1983) 152 CLR 281 [1983] HCA 10, 298 (Gibbs CJ), accessed 19 June 2015.

[84].              See, for example, proposed clauses 37, 64 and 38 of the Bill.

[85].              Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19, [49], quoting Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth [1986] HCA 47, accessed 22 May 2015.

[86].              X7 v Australian Crime Commission [2013] HCA 29, 59]-[65].

[87].              See for example proposed sections 24A(3), 25A(6), 25B(4), 25C(3), 25D(2), 25E(5), 25F(5), 25H(5) and 28(9).

[88].              New South Wales Office of the Director of Public Prosecutions, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 29 May 2015, accessed 17 June 2015.