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Chapter
2
Administrative and procedural issues
2.1
As early as November 2002, the Parliamentary Joint Committee on the
Australian Crime Commission (PJC/committee) expressed its concern with the
exercise of coercive powers, acknowledging that such powers are a potent weapon
that can significantly affect individuals.[1]
2.2
In relation to the Australian Crime Commission (ACC), the committee
concluded:
Appropriate safeguards to ensure the proper use (ie to further a
special operation/investigation) therefore are required. These safeguards
should operate both at the point of authorisation and in the exercise of them.[2]
2.3
The Australian Crime Commission Act 2002 (the Act) contains some safeguards.
But it was not until 2007 that an issue arose as to whether the ACC and its
examiners were complying with those provisions of the Act.
2.4
The PJC therefore resolved on behalf of the Parliament to inquire into
the administrative and procedural arrangements of the ACC and its examiners in
regard to the issuing of summonses and notices under the Act.
Issuing summonses and notices
The legal requirements
2.5
Subsection 28(1A) of the Act provided that, before issuing a summons, the
examiner must be satisfied that it is reasonable in all the circumstances to do
so. The examiner must also record in writing the reasons for the issue of the
summons. An identical provision existed in respect of a notice: subsection
29(1A).
2.6
In September 2007, Parliament enacted the Australian Crime Commission
Amendment Act 2007 (the Amending Act). Subsections 28(1A) and 29(1A) were
amended to allow the examiner to make the written record before, at the same
time, or as soon as practicable after the issue of the summons or notice.
2.7
Upon examination, the Senate Scrutiny of Bills Committee expressed the
view that these amendments might trespass on personal rights and liberties.[3]
But it was not until the PJC conducted its inquiry that the Amending Act that
this concern was more thoroughly scrutinised.
The rationale
2.8
In his second reading speech, the then Manager of Government Business in
the Senate stated that:
The amendments proposed by the Bill will address situations
where summonses or notices need to be issued in urgent situations, or where
large numbers need to be issued simultaneously.[4]
2.9
Neither urgency nor volume were sufficient to convince Emeritus
Professor Jim Davis that the amendments were justifiable:
To my mind, administrative convenience ought not to be the sort of
factor that, in my view, severely limits civil liberties and human rights.[5]
2.10
And the Law Council of Australia questioned the true extent of the
alleged problem:
The information provided by the ACC in other forums would
suggest that ACC special investigations or operations are for the most part
highly structured and methodically planned exercises. The impression is given
that, because of the sophisticated and organized nature of the criminal
activity under investigation, careful and strategic decisions are made about
where and how to obtain information, from whom and in what order.[6]
2.11
In addition, and more significantly:
Even in an urgent case, the Law Council would expect an examiner
to require a requesting officer to provide reasons and make a case before the
examiner decided to issue a summons. In those circumstances, the obligation to
record reasons prior to issuing the warrant should not be unduly onerous
because material should already be before the examiner.[7]
2.12
However, the Commonwealth Ombudsman in its report 'Australian Crime
Commission: use of certain powers under Division 2, Part II of the Australian Crime
Commission Act 2002', found that:
in respect of both summonses and notices, the majority of
reasons were recorded after the issuing of the summons or notice.[8]
2.13
The Commonwealth Ombudsman found that, subsequent to the enactment of
the Amending Act, 53 per cent of summonses and 57 per cent of notices were
having their reasons recorded post facto. The Ombudsman noted that, in
these instances, the recording of reasons often did not occur 'as soon as
practicable': 15 per cent of summonses and 18 per cent of notices had their
reasons recorded more than seven days after the issue of the summons or notice.[9]
2.14
The Crime and Misconduct Commission Queensland, relying upon its own
experience, queried the difficulty of making a written record before or at the
same time as the issue of a summons/notice:
Inquiries made of CMC officers involved in the issuing process,
as issuers of or applicants for, notices reveal that no instances have occurred
involving the issue of notices without the generation of the record before or
contemporaneously with the issue of the notices. Even in urgent circumstances,
which arose on a Sunday in the context of a investigation [sic] into suspected
terrorist activity, the appropriate record was created before the approval of
the Supreme Court was obtained for the issue of an immediate attendance notice.[10]
2.15
The Crime and Misconduct Commission Queensland has a simple
certification process, but could not envisage what circumstances might lead an
agency like the ACC, or its examiners, to have to delay the generation of a
record of decision.[11]
2.16
Nonetheless, and with reference to its own legislation, the Crime and
Misconduct Commission Queensland supported the validity of notices issued without
a 'record of decision'.
Whilst such an occasion has not arisen in the history of the
CMC, the possibility of especially urgent circumstances or some other
impediment to usual practice arising cannot be totally excluded.[12]
2.17
The PJC does not believe that it is too difficult to make a simple or
basic record of reasons for decision upon issue of a summons/notice,
particularly if the material upon which a decision is based is readily
available.
2.18
On this point, Liberty Victoria observed:
If there is time to attend to the paperwork of issuing a summons
it is scarcely credible that there will not be time to record the reasons for
it.[13]
2.19
But the Attorney-General's Department indicated that the problem was not
temporal: examiners cannot always access the ACC's secure network.[14]
Implicit in this argument is the notion that examiners cannot find any other
means by which to record their reasons for decision, or are not permitted to do
so. The PJC does not accept this argument.
2.20
The ACC has told the committee that, prior to the Justice Smith
decision:
Operational pressures would have made it impracticable to record
more than a brief note as to the reasons before issuing a summons or notice and
that would not have adequately served the audit function of written reasons.[15]
2.21
The CEO of the ACC, Mr Alastair Milroy also stated that:
It is impractical to record more than a brief note. That is
mainly to do with the fact of the cases that they have. Being expected to make
notes and write reasons at the time of receiving a notice or even before
issuing a notice is impractical. I think that is one of the reasons why the
changes to the act were requested.[16]
2.22
The PJC acknowledges that it might be inconvenient and disruptive to
examiners, and the examination process, to make a detailed written record of
reasons for decision prior to issue of a summons/notice. But on this point, the
committee agrees with Emeritus Professor Jim Davis. More importantly, the ACC
concedes that the making of a 'brief note' is feasible, and this is all that
the Act requires.
2.23
In this regard, the committee notes the comments of the Commonwealth
Ombudsman arising from its inspection of the ACC's summonses/notices records:
The recording of those reasons need not be a time consuming
task. Although there may at times be reasons that warrant more lengthy delays
before reasons are recorded, in general it is difficult for this office to
accept that delays of the extent found during this inspection could reasonably
be considered to meet the legislative standard.[17]
2.24
The PJC believes that it is not too impractical or onerous for the examiners
to make some form of written record prior to the issue of a summons/notice.
This would appear to be best practice for any federal executive agency
exercising coercive powers. And the committee is not convinced that urgency was,
or is, a significant factor in the issuing of summonses/notices. The issue of volume
is further discussed in chapter 3.
2.25
The PJC recognises that the recording of reasons for decision upon issue
of a summons/notice would be greatly facilitated by the existence of an
appropriate template. And if examiners wished to expand upon that record, and
more fully record their reasons for decision for audit purposes, then this can
be undertaken subsequent to the issue of the summons/notice.
2.26
The CEO of the ACC, Mr Alastair Milroy, has told the committee that:
I am developing with the Commonwealth Ombudsman a compliance
model applicable to the examiner’s processing, allowing the Ombudsman to
conduct an audit and inspection program.[18]
2.27
The PJC commends this initiative, adding that the compliance model
should include a template for recording reasons for decision upon issue of a
summons/notice. The committee cautions that the compliance model is not an administrative
exercise, but an important accountability mechanism. It should therefore
comprise carefully considered procedures which minimise the risk of challenge.
2.28
The committee supports recommendations 2, 3, and 4 of the Commonwealth
Ombudsman contained in the Australian Crime Commission: use of certain
powers under Division 2, Part II of the Australian Crime Commission Act 2002 report
in regard to the recording, and the electronic storage and management of
documents accompanying summonses and notices.
Recommendation 1
2.29
The committee recommends that the Australian Crime Commission be
required to, without delay, develop and implement a consistent and reliable
method for its examiners to promptly and securely record their reasons for
decision as required by Part II Division 2 Subsections 28(1A) and 29(1A) of the
Australian Crime Commission Act 2002.
Recommendation 2
2.30
The committee recommends that the amendment made to Part II Division 2 Subsections
28(1A) and 29(1A) of the Australian Crime Commission Act 2002 by the Australian
Crime Commission Amendment Act 2007 be repealed but that those subsections
be amended to ensure that the reasons for the decision must be recorded in
writing before the issuing of a summons or notice.
2.31
The committee's proposed amendments to Part II Division 2 Subsection
28(1A) and 29(1A) can be found at Appendix 4.
The statutory safeguards
2.32
Subsections 28(1A) and 29(1A) of the Act stipulate two safeguards in the
examiners' exercise of the ACC's coercive powers: first, that the examiner must
record in writing the reasons for issuing a summons or notice; and second, that
before issuing a summons or notice, the examiner must be satisfied that it is
reasonable in all the circumstances to do so.
A written record
2.33
The ACC is not the only executive body invested with coercive powers.
But the Attorney-General's Department submitted:
Sections 28 and 29 of the ACC Act are more prescriptive than
other provisions in relation to the formal requirements and procedural
safeguards applicable to the issuing of examination summons and notices to
produce by comparable bodies.[19]
2.34
The Attorney-General's Department added:
The requirement to record reasons is only present in the legislation
applying to the Victorian Chief Examiner...Section 15 of the Major Crime
(Investigative Powers) Act 2004 (Vic) provides that the Chief Examiner, in issuing
a summons to attend an examination and/or to produce documents is obliged to
record reasons for doing so. However, those provisions do not stipulate when
the Chief Examiner should record reasons, nor do they specify any consequences
for non-compliance with this or any other formal requirement set out under
those arrangements.[20]
2.35
The Crime and Misconduct Act 2002 (Qld) is another example
provided by the Attorney-General's Department. Under that legislation, officers
of the Crime and Misconduct Commission Queensland are not required to record
reasons for the decision to issue notices (attendance and production). And,
unlike a production notice, an issuer is not even required to hold a reasonable
belief or suspicion in connection with what is sought under an attendance notice.[21]
2.36
However, this line of reasoning does not persuade the PJC that the ACC
is overly prescribed. The committee believes that a body invested with
intrusive coercive powers should not be permitted to exercise those powers without
appropriate audit and record mechanisms. Some form of checks and balances
is required, and this is what is envisaged and supplied in subsections 28(1A)
and 29(1A) of the Act.
2.37
As indicated in preceding paragraphs, the PJC believes that the making
of a written record is crucial in the process of issuing either a summons or a
notice: the requirement to record reasons in writing evidences the examiners'
compliance with subsections 28(1A) and 29(1A) of the Act.
The requirement to make a record of the reasons for the issue of
a summons or notice is...an essential element in the safeguards that are required
for due process in the exercise of coercive powers. The process of recording
reasons assists in forming a proper rationale for the issue of the summons or
notice. It is also important in view of the multitude of consequences which can
flow from that decision.[22]
2.38
The Crime and Misconduct Commission Queensland concurred, telling the
committee:
The CMC considers it imperative that there be a record created,
at or before the time of the issuing of a coercive notice, which has the effect
of demonstrating what material was considered by the issuer and what was the
issuer’s state of mind at the time the decision to issue was made.[23]
2.39
But the Law Council of Australia argued that the safeguard has been
diminished by granting examiners such a wide latitude in the time for recording
of reasons:
If examiners are permitted to record reasons after the issue of
the summons, and more particularly after the conduct of the examination or the
production of documents, the value of the safeguard is significantly
diminished. The perception will arise, and will be difficult to counter, that
summonses have been retrospectively justified by what was revealed in the
course of an examination, rather than information which was available at the
time of issue. In short, there will be no effective safeguard against
fishing expeditions.[24]
2.40
Liberty Victoria similarly argued that there should be no doubt about
whether a proper basis existed for the issue of a summons at the time it is
issued:
The amendment permits the ACC to "fudge" that by
issuing summonses when there is no proper basis and later manufacturing one. It
thus opens the door to abuses of power by the issue of summonses with no proper
basis.[25]
2.41
More worrisome, as Emeritus Professor Jim Davis observed:
In the simple reading of the words of this amendment act there
is no time within which an examiner must necessarily make a written record of
the reasons for the issue of a summons.[26]
2.42
The PJC agrees that the Amending Act has diminished the safeguard, thus increasing
the risk of summonses/notices being issued without the proper justification.
The PJC does not condone such a risk, and anticipates that Recommendation 2
will alleviate the concern.
Reasonable circumstances
2.43
The requirement for an examiner to be satisfied that it is reasonable in
all the circumstances to issue a summons or notice is intended to ensure that this
occurs only if:
- there is a reasonable basis for believing that the person who is
the subject of the summons or notice has information which will assist the
relevant ACC investigation or operation; and
- it is necessary to have recourse to the ACC's coercive powers in
order to obtain that information.[27]
2.44
In the context of coercive powers, this requirement is often referred to
as if it were the examiners' only substantive procedural obligation. Indeed,
upon introduction of the Amending Act in the Senate, Senator Eric Abetz cited
this obligation as evidence of the legislation's due regard for individual
rights.[28]
2.45
And the Attorney-General's Department maintained this view, telling the
PJC that the requirement for an examiner to have reasonable grounds for issuing
a summons remains challengeable in a court of law.[29]
The ACC Amendment Act preserves important procedural safeguards
that ensure the integrity and fairness of examinations conducted under the ACC
Act, and of convictions secured as a result of evidence obtained through those
means.[30]
2.46
The PJC notes that it is not examinations and convictions under review,
but the method by which the ACC examination process is commenced. And for this
purpose, the Act specifies two procedural safeguards. Having due regard to one
safeguard does not excuse the elimination of the second safeguard.[31]
Effectiveness of the safeguards
2.47
The PJC received submissions which argued that examiners have misused or
overused the ACC's coercive powers. These submissions were also critical of the
Parliament's perceived complicity.
2.48
The Law Council of Australia submitted that the real rationale for the
amendments was to rectify problems arising from the examiners' non-compliance
with the Act:
It is not open to the examiners to adopt a liberal
interpretation of the Act any more than it is open to them to simply disregard
the requirements of the Act...The Amendment Act sent a dangerous message that
agencies which ignore the requirements of the law will be shielded from the
consequences of their actions through the use of retrospective legislation, and
may in fact even be rewarded for their non-compliance with legislation that
reduces the safeguards they must comply with in the future.[32]
2.49
And Civil Liberties Australia submitted that:
It appears the Commonwealth has set itself above the law in that
it has failed in a substantive way to observe the requirements of Section 28
and then used its privileged position as law maker to rectify its wrong. The
Commonwealth failed in its duty to properly exercise the specific safeguards
already built into a somewhat draconian piece of legislation. It needs to be
remembered that the powers given to this specific Commonwealth agency are
sweeping, and set aside some of the most fundamental principles underpinning Australia’s
jurisprudence.[33]
2.50
Civil Liberties Australia went on to describe the amendments as "ill
conceived and inappropriate" and asserted that they would "set a
precedent for Commonwealth agencies to rectify their failure to abide by the
law."[34]
2.51
Liberty Victoria was also scathing of the "bad policy"
amendments:
A body invested with the far-reaching coercive powers of the ACC
should be held to the strictest procedural standards. At a time when sloppy law
enforcement has been exposed in cases such as those of Dr Haneef, Vivian Alvarez
Solon and Cornelia Rau, it seems extraordinary for the Parliament to relax law
enforcement standards in this fashion.[35]
2.52
The PJC does not believe that the Amending Act was intended to do
anything other than address immediate ACC operational difficulties. In
particular, the amendments to subsections 28(1A) and 29(1A) were not intended
to relax procedural standards, which the committee agrees are appropriate as an
accountability mechanism.
2.53
The safeguards which the Parliament incorporated within the Act were
initially thought sufficient to protect individual rights. That this might not
be the case has only recently become apparent. And the PJC does not condone the
whittling away of these safeguards.
2.54
Much of what takes place within the ACC quite properly occurs without
the need for transparency. But in law, justice needs to be seen to be done, and
the committee believes that this maxim applies equally to the administrative
and procedural processes of the ACC, Australia's premier intelligence body into
serious and organised crime.
2.55
The requirement to record reasons in writing provides a means for
testing whether the examiners have properly exercised the ACC's coercive powers,
including having had due regard to statutory safeguards. The PJC strongly cautions
the examiners to have recourse to the spirit of the law. And the committee's
recommendations will clarify and strengthen the intention and expectations of
the Parliament.
2.56
The committee will monitor the appropriateness and effectiveness of the
statutory safeguards, with the assistance of the Commonwealth Ombudsman, and
hopes that the assessment of Mr Mark Trowell QC is accurate:
My impression is that the ACC is very conscious of the
limitations that operate upon it...But I think for the most part they accept—and
the examiners really demonstrate this—that they do have those limitations, they
do attempt to exercise them carefully and with due regard for the process of
law.[36]
Failure to comply
Effect on safeguards
2.57
A third major criticism of the amendments to sections 28 and 29 of the
Act concerned the effect of new subsections 28(8) and 29(5).
These subparagraphs provide that an examiner's failure to comply with the record
making requirements does not affect the validity of a summons or notice.
2.58
The committee notes that these provisions are somewhat unique, with the
legislation for most other comparable bodies not specifying consequences for examiners'
non-compliance with formal requirements.
Section 82 of the Crime and Misconduct Act 2001 (Qld) provides
that failure to give reasons for issuing a notice to attend a hearing does not
prevent the Commission from questioning a person about any matter which relates
to an investigation or any matter for which the notice was issued. This is the
only provision that bears any similarity to the corresponding ACC Act provision. [37]
2.59
Mr Michael Brereton told the PJC:
The Examiners should not...be allowed to have their failure to
comply with the Act to be retrospectively validated, particularly when such
failure was crucial to enlivening the jurisdictional basis to issue a Section
28 summons.[38]
2.60
And the Law Council of Australia argued that it was crucial for
examiners to record reasons for issuing a summons/notice.
There is an inherent link between the requirement that an
examiner only issue a summons if he or she is satisfied that it is necessary to
do so and the requirement that he or she record his reasons in writing. The former is not a substantive
requirement and the later a technicality, as was suggested at the time the
Amendment Act was passed. These obligations operate together as a safeguard
against misuse of the coercive powers and to deliver a degree of tangible
accountability – not just in a systemic sense but in the context of each
individual case.[39]
2.61
Emeritus Professor Jim Davis concurred in relation to the effect of subparagraphs
28(8)(a) and 29(5)(a).
The new paragraph would go much further than merely limiting the
effect of [the Justice Smith] decision, and would render ineffective the second
sentence of subsection 28(1A), which provides that an examiner must record in
writing the reasons for the issue of a summons or notice.[40]
2.62
The PJC is persuaded that subsections 28(8) and 29(5) could negate the
safeguards contained in subsections 28(1A) and 29(1A), as well as eliminate a means
of accountability. Clearly, the Amending Act was not intended to sanction or
authorise the examiners to act with impunity.
Recommendation 3
2.63
The committee recommends that Part II Division 2 Subsections 28(8) and
29(5) of the Australian Crime Commission Act 2002 be repealed.
2.64
The Law Council of Australia told the PJC:
One way in which our criminal justice system guarantees
compliance with rules of procedure is by making the admissibility of evidence
contingent, at least in part, on it having been obtained in compliance with law...it
means that compliance with procedural requirements set out in the law is not
only monitored at an overarching, systemic level by bodies such as the
Commonwealth Ombudsman. Rather, compliance is also monitored and enforced in
each and every case by the very individual effected [sic] by the exercise of
the power, that is, the person who has the greatest interest in ensuring that
procedural safeguards are adhered to.[41]
2.65
The essence of this argument was that subparagraphs
28(8)(a) and 29(5)(a) of the Amending Act, by removing the imperative for
examiners to record reasons, also removed a level of scrutiny and
accountability.
2.66
This was a crucial concern for Mr Robert Richter QC from the Law Council
of Australia:
We need safeguards to the exercise of coercive power. The
more safeguards the better, especially if they are reasonable safeguards. It
seems to me that the safeguards that were contained in the Act did not go as
far as we would have liked originally in the sense that there was no outside supervision,
as it were, by the courts as to the reasonability of the reasons...We want real
accountability so that the notion of accountability is enforced rather than
compliance with the law produced by the removal of the accountability. The
amendment said, ‘Listen, you’re not complying with the law, so we will make it
easier for you; we will remove the law.’ That just seems wrong.[42]
2.67
The ACT Attorney-General, The Hon. Simon Corbell MLA made a similar
comment:
Given that the ACC is immune from providing reasons for its
decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth),
the practical effect of new sections 28(8) and 29(5) will be to deny a suspect
or accused person the means of effectively challenging the lawfulness of a
summons issued against them. [43]
2.68
The PJC notes that two
ideas are intertwined in these submissions: first, the non-existence of reasons
for decision; and second, the lack of availability of reasons for decision. An
examiner's reasons for decision are normally available to a court in judicial
proceedings challenging the issue of a summons/notice. Whereas if those reasons
have never been created, then they cannot be challenged. The committee shares the
Law Council of Australia's concerns, particularly as there are few means by
which the examiners' conduct in issuing summonses and notices can be
scrutinised.
2.69
The Attorney-General's Department told the PJC that subparagraphs 28(8)
and 29(5) are meant to ensure that ACC operations and investigations are not
undermined by reason of an examiner's failure to comply with 'technical' requirements.
The amendments do not circumvent substantive procedural
obligations, such as the requirements under subsection 28(1A) that the examiner
must be satisfied that it is reasonable in all the circumstances to issue the
summons and under subsection 28(3) that the summons should, other than in
limited circumstances, set out the general nature of the matters in relation to
which the examiner intends to question the person.[44]
2.70
If the record making requirements are 'technical', then subclauses 28(8)
and 29(5) are primarily inconsequential. But the PJC, for the reasons already
indicated and further discussed in chapter 3, strongly rejects this
interpretation.
2.71
The committee concurs with the views of the South Australian
Attorney-General, The Hon. Michael Atkinson:
...that if a defendant is to be subjected to the rigours of
compulsory examination (and all that entails), the prospective examiner should
be obliged to record reasons for issuing the process as a measure of
accountability to the due process of the law.
The Australian Crime Commission Amendment Bill 2007 seeks
to overthrow this comparatively minimal formal protection. It is no
technicality to be discarded on a whim.[45]
2.72
The PJC strongly believes that there must be reasons for decision
available for review by those authorities empowered to scrutinise the actions
of the examiners in issuing summonses and notices.
Disclosure of summonses/notices
2.73
A related matter which concerned the PJC was the statutory prohibition
on the disclosure of information about a summons/notice, or any official matter
connected with it.[46]
Subsection 29A(2) allows an examiner to determine whether the necessary
notation is included on a summons/notice.
2.74
The committee understands that it might not always be prudent, or
desirable, for a person summonsed, or issued with a notice, to be able to
disclose that fact. This prohibition extends to a legal practitioner providing
legal advice or representation relating to the summons notice or matter.[47]
The PJC understands that there might be sound operational reasons for this
extended prohibition.
2.75
But there are two exceptions to the statutory prohibition: first, to
communicate with a legal representative; and second, if the 'person' is a body
corporate, to an officer or agent of the body corporate. The exceptions do not include
other professionals, such as accountants, who might have a detailed knowledge
of the matters falling within the scope of the summons/notice. The practical
effect of the non-disclosure prohibition is that a person's private matters can
be examined by the ACC without that person's knowledge.
2.76
A non-disclosure prohibition is effective until an ACC operation or
investigation is concluded and, in certain circumstances, is automatically
cancelled by the operation of subsection 29A(4) of the Act. Upon cancellation,
the CEO of the ACC is required to notify each person affected by the
prohibition. Otherwise, it ceases to be a criminal offence to disclose the
service or receipt of a summons/notice five years after issue of that
summons/notice.[48]
2.77
The committee has been told that the ACC rarely, if ever, provides the
compulsory notification of cancellation required under subsection 29A(5) of the
Act. If true, then the committee is concerned with the apparent disregard that
the ACC has for this statutory obligation. It is not acceptable to simply allow
the prohibition to lapse after five years as envisaged by subsection 29B(5) of
the Act.[49]
The PJC is very much aware that this approach allows people to continue to
believe that they are still subject to a non-disclosure prohibition. The PJC condemns
this practice, and recommends that the ACC review its relevant procedures.
2.78
When questioned, the ACC told the committee that:
[Section 29A(1)] guides you before you get to the examination.
At the end of the examination, the examiner would have made a non-publication
direction under section 25A(9). That would be tailored to suit the matter. They
are varied from time to time, but largely that continues. There is a mechanism...where
those non-publication directions then link in with the role of a court and the
court can effectively set those aside for the purposes of a particular matter.
That very rarely happens because we would normally vary the terms of the non-publication
direction to facilitate disclosure on subpoena or under disclosure requirements.[50]
2.79
The PJC acknowledges that there are two distinct provisions operating
here: sections 29A and 25A. One relates to a summons/notice, the other relates
to an examination. And each has a method for protecting confidentiality. One is
a prohibition against disclosure of the existence of the summons/notice, the
other is a non-publication direction relating to evidence given, or about to be
given, to an examiner. The two provisions are not to be confused.
A non-publication direction may, in writing, be varied or
revoked, except if to do so would 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.[51]
2.80
The CEO of the ACC, Mr Milroy told the committee:
There are requests made for such considerations. And then the
paperwork comes to me for consideration whether to lift the non-disclosure
order.[52]
2.81
The committee notes that it is at the CEO's discretion whether to vary
or revoke a non-publication direction. And the committee expects such requests to
be given due consideration and not dismissed out of hand.
2.82
The committee fully supports the legislative provisions terminating
non-disclosure orders, and their associated offences, as well as the interim
mechanisms by which persons aggrieved by the issue of a summons/notice can
voice a complaint.[53]
2.83
The Commonwealth Ombudsman (Ombudsman) has some oversight of the ACC and
its examiners. But the committee suggests that there is some confusion
regarding whether the Ombudsman can receive a complaint without the complainant
being in breach of a non-disclosure order.
Recommendation 4
2.84
The committee recommends that Part II Division 2 Subsection 29B(4) of
the Australian Crime Commission Act 2002 be amended to include the
Commonwealth Ombudsman.
Reimbursement of expenses
2.85
One further matter on which the PJC wishes to comment is that of witness
expenses.
2.86
Under section 26 of the Act, a witness appearing before an examiner must
be paid the expenses of his or her attendance. The amount payable is determined
in accordance with the scale prescribed by Regulation 5 of the Australian
Crime Commission Regulations 2002 (Regulations), and is referenced to the
High Court Rules.[54]
2.87
However, this is not the case in relation to witnesses complying with a
notice. For a witness producing a document or thing, the CEO of the ACC "may
direct" that the witness "shall be paid by the Commonwealth in
respect of the expenses of his or her attendance an amount ascertained in
accordance with the prescribed scale."[55]
2.88
The PJC observes that a person complying with a section 29(1) notice
will be paid only if the CEO makes a direction, or that person applies to the Commonwealth
Attorney-General for assistance (legal or financial) in respect of the appearance
before the examiner.[56]
The committee notes that applications to the Attorney-General are not
guaranteed to be successful, and, as a document or thing can be produced to a
member of the ACC staff, this option might not be available.
2.89
The PJC particularly notes that the prescribed scale covers only
'appearance costs', whereas, with a notice, the real imposition occurs prior to
delivery of the requested material. It might take considerable time and expense
to collect, collate and copy the requested material, and it might impact upon
work commitments and wages.
2.90
The PJC is unclear as to why, in relation to expenses, there should be
any distinction between persons served with a summons as opposed to a notice.
Both persons are equally compelled to assist the ACC with the conduct of its
special investigation or operation.
2.91
The committee therefore considers that the High Court Rules relating to summonses
should also apply to persons complying with a notice issued under subsection
29(1) of the Act, as they do witnesses appearing before an examiner.
2.92
The PJC suggests that when the Minister next commissions an independent
review of the operation of the Act, this issue be examined as one of concern to
the Parliament and the broader community.
The coercive powers – a balancing act
2.93
The ACC has been invested with coercive powers, which, aside from Australia's
anti-terrorism laws, are unique in allowing an unprecedented level of intrusion
into individuals' personal lives.
2.94
The ACC told the PJC:
These powers are critical to the successful disruption of
organised criminal activity, dismantling of organised criminal entities and the
provision of strategic intelligence based on a unique information collection
capability of examinations to scope the involvement of organised crime in
infrastructure or industry sectors.[57]
2.95
And the coercive powers have been effective, according to the CEO of the
ACC, Mr Alastair Milroy:
What we have seen in the use of the powers is the significant
intelligence that you are able to derive from the use of the powers, both from
friendly and unfriendly sources or witnesses. The use of the powers in special
investigations, be it the homicides that have occurred in Victoria or the drug
operations, has been instrumental in getting some significant results, not only
for the ACC but for our partners, which has led to a significant number of
criminal operations being disrupted and prosecuted.[58]
2.96
The need to gather intelligence and investigate crime on the one hand,
and the need to preserve individual rights on the other, is central to the
issue of the exercise of coercive powers. Balancing these competing interests
is a task which must always be undertaken with caution.
2.97
This inquiry has led the PJC to believe that the Amending Act did not
have sufficient regard to the preservation of individual rights, and the safeguards
developed by successive parliaments and courts.
2.98
And because the ACC exercises special and intrusive coercive powers in
an highly secretive environment, it is vital for these rights and safeguards to
be preserved with clear and effective accountability mechanisms.
2.99
The PJC believes, as a matter of sound governance and accountability,
it is highly appropriate for the ACC, in a timely fashion, to create and
maintain comprehensive records of the circumstances in which it exercises the
coercive powers vested in it by the Parliament, and the reasons for that
exercise.
2.100
A vital corollary is that the ACC and its records must be open to such independent
and external review and audits as are determined by the Parliament.
2.101
It is through such mechanisms that the ACC maintains credibility, and
the confidence of those who repose faith in the ACC.
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