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Chapter
4
Accountability
4.1
The Parliamentary Joint Committee on the Australian Crime Commission
(PJC/committee) approached this inquiry with a strong sense of purpose.
4.2
As discussed in this report, the Australian Crime Commission
Amendment Act 2007 (the Amending Act) has been controversial from its
inception. And the committee has particular responsibilities in relation to the
Australian Crime Commission.
4.3
Part III subsection 55(1) of the Australian Crime Commission Act 2002
(the Act) states that the PJC's duties include:
- monitoring and reviewing the performance by the Australian Crime
Commission (ACC) of its functions; and
- reporting to both Houses of the Parliament, with such comments as
it thinks fit, upon any matter appertaining to the ACC or connected with the
performance of its functions to which, in the opinion of the committee, the
attention of the Parliament should be directed.[1]
4.4
As stated by the Police Federation of Australia, it is fitting that:
Parliament puts in place appropriate oversight by bodies such as
the Australian Commission for Law Enforcement Integrity and the Parliamentary
Joint Committee on the Australian Crime Commission to ensure that the
application of the law is handled appropriately.[2]
4.5
The passage of the Amending Act in both chambers, three days after the
legislation was first introduced in the Parliament, prevented the PJC from
exercising its important oversight role.
4.6
But the controversial nature of the legislation was not lost on either
members or senators. And the Amending Act was passed on the understanding that the
PJC would be required to conduct an inquiry in the 42nd Parliament.
4.7
The PJC notes that in better circumstances, and as per normal practice,
the inquiry would have been conducted before passage of the Amending Act.[3]
4.8
Be that as it may, the committee has conducted its inquiry, and in
fulfilling its duties under section 55 of the Act, two matters have drawn the
PJC's attention and further comment.
Oversight
The committee
4.9
Section 59 of the Act concerns the furnishing of reports and information
to a number of bodies by the ACC. In relation to the PJC, section 59 provides:
(6A) Subject to subsection (6B), the Chair of the Board:
(a) must comply with a request by the Parliamentary Joint
Committee on the Australian Crime Commission for the time being constituted
under Part III (the PJC) to give the PJC information relating to an ACC
operation/investigation that the ACC has conducted or is conducting; and
(b) must when requested by the PJC, and may at such other times
as the Chair of the Board thinks appropriate, inform the PJC concerning the
general conduct of the operations of the ACC.
(6B) If the Chair of the Board considers that disclosure of
information to the public could prejudice the safety or reputation of persons
or the operations of law enforcement agencies, the Chair must not give the PJC
the information.
(6C) If the Chair of the Board does not give the PJC information
on the ground that the Chair considers that disclosure of the information to
the public could prejudice the safety or reputation of persons or the
operations of law enforcement agencies, the PJC may refer the request to the
Minister.
(6D) If the PJC refers the request to the Minister, the
Minister:
(a) must determine in writing whether disclosure of the
information could prejudice the safety or reputation of persons or the
operations of law enforcement agencies; and
(b) must provide copies of that determination to the Chair of
the Board and the PJC; and
(c) must not disclose his or her reasons for determining the
question of whether the information could prejudice the safety or reputation of
persons or the operations of law enforcement agencies in the way stated in the
determination.[4]
4.10
These provisions were amendments made to the Act with the enactment of
the National Crime Authority Legislation Amendment Bill 2001. They were
intended to clarify the ability of the PJC to request and receive certain
information from the ACC.
This mechanism is designed to ensure that sensitive material is
appropriately protected, but in a way that ensures that there is confidence
that, subject to these sensitivities, appropriate disclosure is made to the
PJC-NCA.[5]
4.11
The committee notes its contemporaneous comments regarding the National
Crime Authority Legislation Amendment Bill 2001:
In considering the original NCA Bill in 1984 the Senate replaced
the Government's proposals for NCA accountability through the Ombudsman and
regular judicial review with the operations of the PJC. In 1985 the then PJC
stated that the provisions in the NCA Act were so poorly drafted that, unless
they were appropriately amended, there was no point in retaining a
parliamentary committee to act as a watchdog over the NCA. The situation was described
as a 'charade'.
This Government Bill proposes to continue the charade, by giving
to the PJC such qualified powers of access to NCA information as to render the
PJC no more capable of scrutinising the NCA's operations than an existing
standing committee using standard parliamentary committee powers. In particular
the Bill leaves unamended the limitations on the PJC's role in subsection 55(2)
and the PJC's rights of access to information under the NCA Act's secrecy
provision (section 51), reform for which the Senate's Committee of Privileges
called in 1998.[6]
4.12
The committee continues to express concern with the limitations
contained in the Act. In particular, the PJC's power to access information
assumes that the committee is informed about matters within the ACC, and that
this knowledge allows the PJC to request and receive information from the Chair
of the ACC Board. This is not always the case, and in such circumstances, the PJC
is left with no mechanism to seek information from the ACC.
4.13
Further, subsection 59(6A) does not stipulate when the Chair of the ACC
Board must comply with the committee's request, and subsection 59(6B) allows
the Chair of the Board a means by which the PJC's request for information can
be denied, although there is a means for appeal to the Minister.
4.14
The totality of the provisions does not suggest that the PJC has any
special ability to meaningfully oversee the ACC.
4.15
That there is a need for such an ability was demonstrated by recent litigation
which challenged the manner in which the examiners were exercising the ACC's
coercive powers.
It was not this committee or the ACC Annual Report or the
Ombudsman which exposed that in over ninety percent of cases ACC examiners were
not recording reasons until after the summons was issued. It was [an accused] and
his defence counsel who brought that to light.[7]
4.16
In the absence of any statutory requirement, neither the ACC nor the ACC
Board had advised the PJC that there was a potential problem with the issuing
of summonses and notices. And the committee had therefore not requested
information from either of those bodies, or sought to facilitate a considered
response.
4.17
This had lead Mr Duncan Kerr MP, the then deputy chair of the committee,
to observe:
I have some discontent with the fact that, as the deputy chair
of the Parliamentary Joint Committee on the Australian Crime Commission, which
has oversight of the Australian Crime Commission, the committee was not advised
that this issue was one requiring attention. It is, I think, a matter of grave
concern that the Australian Crime Commission and its board failed to come
before the parliamentary committee which was established by legislation to
supervise the work of the Australian Crime Commission. The parliamentary
committee was not advised of the fact that there was a substantive issue
arising which might affect a substantial number of the inquiries and
examinations conducted under the legislation. In fact, we found out about this,
as the shadow minister says, by the introduction of a piece of legislation into
this parliament on Monday. That is an extraordinary thing. That is an
extraordinary and contemptuous way to deal with the parliamentary oversight
body established under legislation.[8]
4.18
Mr Chris Hayes MP, also a member of the PJC, noted:
Under section 55 [of the Act] the committee has a specific role.
There are various obligations. It is part of the counterweight of balance
because of the coercive nature of this very special law enforcement body. This
body has extreme powers. Its powers are akin to a royal commission and, at the
time of its being set up, the parliament in its wisdom decided, as was the case
with the [National Crime Authority], that there would be a measure of
parliamentary oversight and that it would be done through a parliamentary joint
committee.[9]
4.19
The CEO of the ACC, Mr Alastair Milroy explained the ACC's failure to
notify the PJC as follows:
My only comment there is that there was a considerably tight
time frame and there were certain actions taken to try to brief as many as possible.
But the Attorney-General’s Department, of course, did take the lead to drive
the process and initiate some consultation.[10]
4.20
Dr Karl Alderson, from the Attorney-General's Department, expanded on Mr
Alastair Milroy's response:
In terms of the process that was followed, those decisions are
very much ones for the minister and the government of the day to decide.
Ministers and governments make choices between a sort of broader consultation
and narrower one moving more quickly. The process that was followed was one
that was judged by the minister and government at the time as being the
appropriate one.[11]
4.21
It is extremely disappointing to the PJC that the ACC at no time sought
to notify its parliamentary oversight committee. The PJC believes that the ACC
had an obligation to notify the committee, even if the executive did not
believe that there was any need to notify the Parliament.
4.22
The PJC believes that the Act should not need to specify every occasion
on which the ACC, and/or its Board, report to the PJC and the Parliament. Some
matters, such as the one mentioned, are of such importance that they must be
reported to the PJC in a timely and appropriate fashion, and as a matter of
course. In future, the PJC expects that all matters reasonably requiring its
attention will be so notified.
4.23
The PJC notes similar, albeit more generic, comments from Senator Bishop
during its inquiry into The future impact of serious and organised crime on
Australian society:
The ACC governance model, in terms of accountability, is
primarily to its stakeholders viz, from the CEO to the Board, from the Board to
the Intergovernmental Committee (IGC), and thence to ministers...
The Committee's role does not seem to be part of that hierarchy.
I suggest a clarification of the Committee's role, which, in light of this
current inquiry, may be far more limited than previously realised...
Considering the terms of reference set out in Section 55 of the
Act it would seem that while the ACC is not accountable to the Committee, the
Committee is accountable to the Parliament for assessment of the way in which
the ACC operates and the function it performs nationally in accordance with its
charter.
Hence in taking evidence during this inquiry, important
questions are declined on the basis that this is a matter for government policy...
Within this role as "systemic mentor" of the ACC
model, it may be necessary for the Committee to approach its work with a modus
operandi than might otherwise be the case with parliamentary committees. This
will entail continuing development of the special relationship of trust with
the ACC, and mutual respect for the complementary responsibilities. None of
this, however, should preclude the Committee from operating as a watchdog of
the parliament, including regular assessment of the operational performance of
the ACC model within its legislative charter.[12]
4.24
The PJC's terms of reference for this inquiry do not encompass the
broader issues of whether the role of the committee, and the powers granted to
it, are sufficient. However, in light of the preceding paragraphs, the
committee suggests that these are significant matters which should be
re-examined, and that there is a need for regular review of the operation of
the Act.
4.25
In making this suggestion, the committee notes that section 61A of the
Act does not include periodic reviews of the Act. The PJC believes that
legislation that governs an agency such as the ACC, and which grants that
agency substantial powers, including intrusive coercive powers, should be
regularly reviewed so as to ensure its appropriateness and effectiveness.
Recommendation 8
4.26
The committee recommends that Part IV Section 61A of the Australian
Crime Commission Act 2002 be amended to require the Minister to cause an
independent review of the operation of the Australian Crime Commission Act
2002 every five years with the first review to be undertaken no later than
1 January 2011.
The Commonwealth Ombudsman
4.27
In addition to the PJC, the Commonwealth Ombudsman (the Ombudsman)
provides some oversight of the ACC. In relation to this inquiry, the committee
was interested in the Ombudsman's ability to inspect ACC records in relation to
controlled operations.[13]
4.28
Controlled operation records inspections are conducted only for the
purposes of Part IAB of the Crimes Act 1914, under which the inspections
are authorised. But the committee believes this accountability mechanism might
be relevant to summonses and notices issued under subsections 28(1) and 29(1)
of the Act.
4.29
In chapter 2 of this report, the committee discussed and noted concerns
with the record making requirements of subsections 28(1A) and 29(1B) of the
Act. The committee has made suggestions and recommendations in support of the
safeguards contained in those provisions. As a result, the ACC may in future
generate records relating to the ACC's exercise of its coercive powers. But
even if they do not, the PJC suggests that examiners' records should be open to
inspection by an independent and external body.
Recommendation 9
4.30
The committee recommends that the Commonwealth Ombudsman be required to
inspect records made by the Australian Crime Commission examiners to ensure
full compliance with Part II Division 2 Sections 28 and 29 of the Australian
Crime Commission Act 2002 and that the Ombudsman report annually to the
Parliament on this matter.
Recommendation 10
4.31
The committee recommends that at least once in each year the
Commonwealth Ombudsman be required to provide a briefing to the Parliamentary
Joint Committee on the Australian Crime Commission about the Australian Crime
Commission's exercise of the coercive powers under Part II Division 2 Sections
28 and 29 of the Australian Crime Commission Act 2002 and that Part III
Section 55AA of the Australian Crime Commission Act 2002 be amended accordingly.
Unauthorised disclosure - a possible contempt of the Senate
4.32
The second matter upon which the PJC wishes to comment is an incident
which occurred during the inquiry.
4.33
At its hearings on 1 May 2008, the committee received urgent and private
correspondence. After consideration of that correspondence, the PJC decided to
adjourn the public hearing on the grounds that a matter before the courts could
be adversely affected should the hearing proceed. The committee resolved to
accept the correspondence as a confidential committee document. However, on 2 May 2008, the nature and content of the confidential correspondence was disclosed in a
media article.
4.34
The Senate clearly articulates the rules regarding the unauthorised
disclosure of confidential documents in Parliamentary Privilege Resolution 6, 25 February 1988.
(16) A person shall not, without the authority of the Senate or
a committee, publish or disclose:
(a) a document that has been prepared for the purpose of
submission, and submitted, to the Senate or a committee and has been directed
by the Senate or a committee to be treated as evidence taken in private session
or as a document confidential to the Senate or the committee;
(b) any oral evidence taken by the Senate or a committee in
private session, or a report of any such oral evidence; or
(c) any proceedings in private session of the Senate or a
committee or any report of such proceedings,
unless the Senate or a committee has published, or authorised
the publication of, that document, that oral evidence or a report of those
proceedings.[14]
4.35
The 122nd Report of the Senate Committee of Privileges sets
out the importance of protecting sources of information, and ensuring that the work
of the Parliament and its committees is not interfered with:
The Committee of Privileges, and the Senate, have always taken
the view that the highest duty of any house of a parliament is to protect its
sources of information...This is reflected in the Parliamentary Privileges Act,
which separately specifies interference with witnesses and release of in camera
evidence as the only two criminal offences under that Act.[15]
4.36
The purpose of the prohibition against unauthorised disclosure is
primarily the protection of persons giving information to committees. But the
prohibition also covers persons about whom information may be given, or who may
be adversely affected by the findings and conclusions of a parliamentary
committee.
4.37
In the first instance the PJC chose to investigate the source of the
unauthorised disclosure in order to establish whether a case for contempt of
the Senate could be found. The Chair of the PJC, Senator Stephen Hutchins,
wrote to all those who had access to the correspondence in question seeking to
establish the source of the unauthorised disclosure.
4.38
The correspondence in response to Senator Stephen Hutchins' request for information
did not identify the source of the unauthorised disclosure. The PJC was
disappointed that, for some, semantic vaguer was employed to avoid providing
the information sought by the committee. An example of this is at Appendix 5. The
PJC decided not to refer the matter to the Committee of Privileges as a
possible contempt of the Senate. But the committee cautions against
interpreting this decision as a tacit sanction of this or any other unauthorised
disclosure.
Conclusion
4.39
In 2007, the then Minister for Justice and Customs, Senator, the Hon. David
Johnston assured the Parliament that, on review by the PJC:
If deficiency is found or the degree of protection, safe-guards,
checks and balances is not found to be sufficient, the government will then
consider those findings and seek to address those points raised, whilst seeking
to preserve the integrity of the intent of the legislation.[16]
4.40
The committee has reviewed the Amending Act and found most of its
provisions to be highly problematic. The Amending Act grants examiners latitude
in the recording of reasons for the issue of summonses/notices beyond what is
necessary. And the Amending Act validates summonses/notices whose issue does
not comply with statutory requirements. Further, the Amending Act
retrospectively applies those provisions to prevent legal challenge to
summonses/notices which were issued in contravention of the legislation.
4.41
The committee acknowledges that the Act may have been ambiguous. But the
PJC is concerned that the legislation has clearly attempted to safe-guard
individual rights while allowing the ACC coercive powers to effectively fulfil
its function. And it appears that the statutory safe-guards have been
consistently read down and diminished. The committee considers the Parliament
to have indicated its intention that a balance be struck, and is disappointed
that in practice this has not been the case, a situation that has been
exacerbated by the Amending Act.
4.42
The committee acknowledges the circumstances in which the Amending Act passed
into law, and its effectiveness in immediately addressing ACC operational
difficulties. But the PJC by no means wishes to condone such a dangerous
precedent, finding that such legislation has no proper place among the laws of
the Commonwealth. In the words of Niccolo Machiavelli,
One should never allow an evil to run on out of respect for the
law, especially when the law itself might easily be destroyed by the evil.[17]
4.43
The PJC has therefore made recommendations which it considers will restore
some balance to the Act.
Senator Stephen Hutchins
Chair
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