CHAPTER 4
Key issues – Parliamentary Joint Committee on Law Enforcement Bill 2010
4.1
Submissions and evidence regarding the LE Bill were generally
supportive.
4.2
The Law Council, for example, welcomed the introduction of the LE Bill
with its expanded oversight of both the ACC and the AFP. The Law Council noted:
In contrast to Australian intelligence agencies and the ACC,
it is anomalous that the AFP is not currently subject to oversight by a
dedicated parliamentary committee. To the extent that the Bill seeks to address
this gap, the Law Council supports its enactment.[1]
4.3
In comparison to the NS Bill, the committee received fewer submissions
and less evidence with regard to specific provisions of the LE Bill. The main
issues discussed in this chapter are the functions of the PJC-LE and the
ability of the PJC‑LE to effectively fulfil these functions.
Functions of the PJC‑LE
4.4
Proposed subsection 7(1) of the LE Bill sets out the functions of the
PJC‑LE, which will include:
- monitoring, reviewing and reporting to Parliament on the
performance by the ACC and the AFP of their functions;
- examining and reporting to Parliament on each annual report of
the ACC and the AFP; and
- examining trends and changes in criminal activities, practices
and methods, and reporting to Parliament on any desirable changes to the
functions, structure, powers and procedures of the ACC or the AFP.
4.5
Proposed subclause 7(2) clarifies that the functions of the PJC‑LE
exclude:
- undertaking an intelligence operation or investigating a matter
relating to a relevant criminal activity;
- reconsidering the findings of the ACC in relation to a particular
ACC operation or investigation (concluded or ongoing);
-
reviewing sensitive operational information or operational
methods;
- reviewing particular operations or investigations that have been,
are being or are proposed to be undertaken;
- reviewing information proved by, or by an agency of, a foreign
government where that government does not consent to the disclosure of the
information; or
- conducting inquiries into individual complaints about the
activities of the ACC or the AFP.
4.6
In essence, the functions of the PJC‑LE will relate to the broad
operation and effectiveness of the ACC and the AFP rather than individual operations,
investigations or complaints.[2]
However, the PJC-LE may still consider information about particular operations
or investigations if this is relevant to its functions.[3]
4.7
The Police Federation of Australia (PFA) submitted that proposed section
7:
...strikes an appropriate balance between the scrutiny we think
is warranted and the safeguards for sensitive information held by law
enforcement bodies, operational matters that should not be interfered with, and
exceptional circumstances where inquiries might be prejudiced or where private
hearings might be more appropriate.[4]
4.8
However, not all submissions held this view. Liberty Victoria, for
example, favoured extending the PJC‑LE's functions to include all matters
it considers necessary:
Openness, transparency and accountability will not be
maximised if the committee is restricted in reviewing sensitive matters. It is
in the interest of Australian democracy for the committee to monitor and report
on the most important of matters. Courts and Royal Commissions have demonstrated
that processes are available for considering sensitive matters, whilst meeting national
security requirements. It is common for reports to be produced that balance the
requirement to maintain confidentiality with openness.[5]
4.9
Other submissions also suggested the incorporation of additional
functions which, in their view, would improve parliamentary oversight by the
PJC‑LE.[6]
Some submissions, commenting more generally on the value of parliamentary
oversight, questioned whether proposed subsection 7(2) actually undermines the
functions set out in proposed subsection 7(1).[7]
More specifically, some submitters and witnesses questioned whether proposed
sections 8 and 9 hinder or obstruct the ability of the PJC-LE to fulfil its
statutory functions.[8]
Ability of the PJC‑LE to fulfil its functions
4.10
Proposed subsection 8(1) creates an obligation for the CEO of the ACC to
comply with requests from the PJC‑LE to provide information in relation
to an ACC operation or investigation (concluded or ongoing), as well as the
general performance of the ACC's functions. A similar obligation is created in
proposed subsection 9(1) in relation to the Commissioner of the AFP and the AFP's
operations, investigations and functions.
4.11
However, proposed subsections 8(2) and 9(2) provide the CEO and the Commissioner
of the AFP with a discretion not to comply with the request if satisfied that:
- the information is 'sensitive information'; and
- the public interest that would be served by giving the
information to the [PJC-LE] is outweighed by the prejudicial consequences that
might result from giving the information to the [PJC-LE].
4.12
Proposed subsections 8(3)-(4) and 9(3)-(4) set out a process by which
the PJC‑LE may refer its request to the relevant minister, if the request
is declined by the CEO or the Commissioner of the AFP. The relevant minister is
then required to make a determination and provide a copy of the determination to
the agency head and the PJC‑LE. The minister is not required to disclose
his or her reasons for making the determination.[9]
4.13
A few submissions disagreed with the proposed disclosure provisions.
Some of the opposition focused on the potential of the provisions to inhibit
the effectiveness of the PJC‑LE. The Law Council, for example, argued:
The new Committee's effectiveness as an accountability body
will ultimately depend on its ability to obtain and review accurate and
comprehensive information about the AFP's and ACC's performance of their
functions.[10]
4.14
In particular, the ground of 'sensitive information' as a potential reason
for withholding information requested by the PJC‑LE drew some comment.
The Law Council submitted:
Parliamentary Committees of all types frequently receive
evidence of this nature and have procedures for handling such information,
including receiving such information in private session, expunging such
material from the transcript of evidence and forbidding publication of that
evidence.[11]
4.15
The AHRC likewise commented:
The government has not justified why provisions preventing
the PJC Committee from disclosing any information obtained through the
performance of its functions would not adequately deal with the Government's
legitimate concern to protect sensitive information.[12]
4.16
In addition, the Law Council identified other concerns with the proposed
disclosure provisions, for example:
-
the failure to address the concerns expressed by the (current) PJC‑ACC
about its inability to provide meaningful oversight of the ACC in the absence
of more comprehensive information gathering powers;
- the appropriateness of the heads of the agencies under review
determining what information should be disclosed to the PJC‑LE;
- the absence of any requirement for the minister to provide
reasons for his or her determination to uphold an agency's decision to withhold
information from the PJC‑LE; and
-
the inclusion of information that 'could prejudice a person's
reputation' in the definition of sensitive information.[13]
4.17
At the public hearing in Melbourne, the Law Council acknowledged that
the PJC-LE model proposed in the LE Bill is an improvement on the Australian
Crime Commission Act 2002 (ACC Act) as it will require agency heads to
balance competing interests in the disclosure of information to the PJC‑LE.
However:
We are of the view that the balance is not yet struck
properly. We think that the bill does not offer enough guidance about what
information agency heads should be providing to the committee...What is more
there should be some time frame involved. It is one thing to require
information but another thing for the agency to say, 'We will give it to you
when we are ready.' It is also, we think, preferable that the minister be the
person who deals with the issue of refusing to provide the information in the
first place rather than the minister be the point of review.[14]
4.18
In response to committee questions, a representative from the Law
Council also suggested that the minister be required to provide skeleton
reasons as to why information is not provided to the PJC‑LE when
requested:
The default position should be revelation of information. If
the chief executive of an organisation decides not to reveal information to a
parliamentary oversight committee, that should be a very, very rare and major
event, and that sort of thing should be approved by a minister, not by the
chief executive, who has an interest, some might think, in protecting the
organisation against the sort of scrutiny that these committees are set up to
achieve.[15]
4.19
An officer from the Department told the committee that the LE Bill
improves the current provisions of the ACC Act in so far as ministerial reasons
are concerned because, at present, the minister must not provide reasons for
the content of a determination.[16]
In addition:
[The Department considers] that Agency Heads will be in a
good position to assess whether the public interest in providing sensitive
information to the Committee is outweighed by the prejudicial consequences that
might result. The suggestion that such a decision only be made by the
responsible Minister would be less flexible and efficient, and could result in
more matters being referred to the Minister, impeding the Committee's ability
to obtain information.
The decision not to provide information to the Committee has
a high threshold. Furthermore, consistent with powers and procedures of
Parliamentary committees, it would be open to agencies to negotiate alternative
arrangements with the Committee, such as providing sensitive information in
private hearings or in a confidential submission. In the rare event where an
agency may contemplate not disclosing information due to the prejudicial
consequences, it will likely be more expedient for the decision to be referred
to the Agency Head (who may indeed be present at the hearing) rather than the
Minister in the first instance.[17]
4.20
Further:
If the decision were a matter for the Minister only, this
could potentially result in the unintentional consequence of the Committee
being provided with less information at hearings, as officers may be inclined
to take a more cautious approach and refer requests for sensitive information
to the Minister for decision. The means to protect sensitive information
should involve as minimal as possible disruption to normal Committee practice
and procedure, and should, as far as possible, facilitate the Committee being
provided with the information it needs to perform its functions in an efficient
manner.[18]
4.21
Finally, the Department noted that the amendments proposed in the LE
Bill are consistent with those provisions they are replacing in subsection
59(6B) of the ACC Act, which, in the Department's view, have worked well to
date.[19]
Committee view
4.22
The committee acknowledges that the reform of Australia's counter‑terrorism
and national security legislation is an ongoing process requiring the full
cooperation of federal, state and territory governments. It is important that
the reform process not be rushed and is conducted in a comprehensive manner
which strives to achieve the appropriate balance between individual rights, as
enshrined in national and international law, and the need to protect national
security. It is equally important that measures proposed in the reform process
are constitutionally supported and capable of withstanding judicial scrutiny.
4.23
Consistent with its earlier views,[20]
the committee is not entirely convinced of the need for urging violence
offences within Division 80 of the Criminal Code. Evidence to the committee
reiterated concerns that existing law covers the targeted behaviour and the
proposed provisions have been poorly drafted, including so as to restrict
freedom of speech as protected by Article 19 of the ICCPR and other
international covenants. The committee understands that the proposed amendments
arise from recommendations made after extensive review by the ALRC and on that
basis accepts the placement of the proposed urging violence offences within
Division 80 of the Criminal Code.
4.24
One particular query raised in evidence was the placement of proposed
sections 80.2A and 80.2B (Urging violence against groups and members of groups)
in Chapter 5 of the Criminal Code (Security of the Commonwealth). The committee
heard that this placement will compromise the effectiveness and utility of the
proposed offence provisions, which many submitters and witnesses stated are
more appropriately classified as discrimination and anti‑vilification
offences.
4.25
While an argument exists for the placement of these provisions in
Chapter 9 of the Criminal Code (Dangers to the community) or Part IIA of the Racial
Discrimination Act 1975, the committee accepts the Department's evidence
that proposed sections 80.2A and 80.2B are appropriately located due to their
potential to impact on the security of the Commonwealth. The committee suggests
however that the Department revise and reissue the Explanatory Memorandum to
the NS Bill to clarify the reasons for including proposed sections 80.2A and
80.2B in Chapter 5 of the Criminal Code.
4.26
In its inquiry into the Provisions of the Anti‑Terrorism Bill
(No. 2) 2005, the committee recommended that proposed subsection 80.3(3) of
the Criminal Code be amended to remove the element of 'good faith'.[21]
Clearly, that recommendation was not adopted. In the context of this inquiry,
the committee heard that the proposed defence is illogical in its application
to the proposed urging violence offences. The committee agrees and recommends
that proposed subsection 80.3(3) be amended to remove the element of 'good
faith'.
4.27
Perhaps not surprisingly, the proposed pre‑charge detention
provisions drew considerable comment, particularly with respect to terrorism
offences. Evidence to the committee argued that the extension application
procedures, particularly the withholding of certain information, might unfairly
prejudice an accused. In this regard, the committee is reassured that the
judicial officer determining the application will factor safeguards into
consideration of the application. However, the committee especially notes
concerns expressed with respect to provisions regarding investigation time and
so‑called 'dead time' (investigation time that can be disregarded from
calculation of the investigation time).
4.28
Some evidence queried the maximum time permitted under the investigation
time (24 hours) and, in discussing the maximum time permitted to be disregarded
under the disregarded time mechanisms, it was sometimes difficult to ascertain
which of the three time components was currently being discussed. In short, the
overwhelming message to the committee was that the current legislative regime
for pre‑charge detention is complex and could be simplified to facilitate
its better understanding and practical implementation.
4.29
The AHRC proposed that there be a maximum investigation period with only
one disregarded time mechanism (relating to the particular needs of an accused).
The committee considers that there is merit in this proposal. The committee
notes however that there is considerable disagreement regarding the length of a
maximum investigation period – ranging from 24 hours to four days and to
arguments that setting a cap might impede or frustrate the investigation of
terrorism offences. In addition, the committee notes that there are various
views regarding the retention of 'dead time' and, if retained, the maximum
period of disregarded time – whether that be unlimited, or in the range of 24
hours to 48 hours, or even seven days.
4.30
The committee heard evidence that the length of pre‑charge
detention must be proportionate to its need to avoid violation of Article 9 of
the ICCPR, which prohibits arbitrary detention. The committee agrees that it is
highly inappropriate to detain persons for longer than is reasonably necessary
and the Criminal Code should, whether the AHRC's recommendation is ultimately adopted
or not, set an appropriate cap. Considering the snapshot of views heard
throughout the inquiry, the committee suggests that the ALRC conduct a public
inquiry into the pre‑charge detention regime with a view to determining what
period of pre‑charge detention is 'reasonably necessary' to balance the
competing interests of criminal investigations and individuals' right to
liberty, as well as a straightforward legislative framework. The committee
encourages the Australian Government to give proper consideration to the
findings of that review. In the interim, the committee recommends that proposed
subsection 23DB(11) be amended to reduce the cap on investigative 'dead time'
from seven days to three days.
4.31
In relation to proposed section 3UEA, the committee agrees with the
numerous submitters and witnesses who described warrantless entry to premises
in emergency situations as a necessary invasion of privacy which must contain
adequate safeguards to avoid potential abuse. The committee accepts evidence
from the Department that existing and proposed safeguards are adequate.
4.32
Proposed subsections 15AA(3C) and 15AA(3D) concerned some submitters and
witnesses. The Law Council, for example, submitted that if an accused satisfies
existing and strict bail criteria, and is granted a bail order, the prosecution
should not have an effective veto over the court's decision. However, the
committee notes that the proposed provisions are modelled on existing state law
in, for example, NSW and South Australia. Accordingly, the committee is not
persuaded that the proposed provisions are inappropriate and should be removed
from the NS Bill.
4.33
In relation to the proposed amendments in the LE Bill, the committee
considers that the ability of the PJC‑LE to fulfil its functions will not
be hampered by the proposed non‑disclosure provisions. However, the
committee notes the concerns relating to the current PJC‑ACC,[22]
as detailed in the evidence from the Law Council. To alleviate these concerns,
the committee calls on the Attorney‑General to provide a ministerial
direction or additional materials to explain the circumstances in which the Chief
Executive Officer of the Australian Crime Commission and the Commissioner of
the Australian Federal Police ought to proactively report to the PJC‑LE.
4.34
In view of the above comments, the committee makes the following
recommendations.
Recommendation 1
4.35
The committee recommends that the Attorney‑General's Department
revise and reissue the Explanatory Memorandum to the National Security
Legislation Amendment Bill 2010 to clarify the reasons for including proposed
sections 80.2A and 80.2B in Chapter 5 (Security of the Commonwealth) of the Criminal
Code Act 1995.
Recommendation 2
4.36
The committee recommends that proposed subsection 80.3(3) of the
National Security Legislation Amendment Bill 2010 be amended to remove the
element of 'good faith' from the proposed defence.
Recommendation 3
4.37
The committee recommends that the Australian Law Reform Commission
conduct a public inquiry into the pre‑charge detention regime. This
review should examine, among other things, what period of pre‑charge
detention is 'reasonably necessary' to balance the competing interests of
criminal investigations and individuals' right to liberty, as well as a
straightforward legislative framework for a pre‑charge detention regime.
Recommendation 4
4.38
In addition to Recommendation 3, the committee recommends that the pre‑charge
detention regime set out in the National Security Legislation Amendment Bill
2010 be amended to limit the amount of time that a person can be held in pre‑charge
detention by:
- retaining the investigation period as set out in proposed
subsection 23DB(5) and proposed section 23DB(F) (a total of 24 hours);
- retaining the investigative dead time provisions as set out in
proposed section 23DB but amending proposed subsection 23DB(11) to reflect a 3
day time limit; and
- retaining the down time provisions relevant to the particular
needs of an accused as set out in proposed subsection 23DB(9).
Recommendation 5
4.39
In relation to the Parliamentary Joint
Committee on Law Enforcement Bill 2010, the committee calls on the
Attorney‑General to provide a ministerial direction or additional
materials to explain the circumstances in which the Chief Executive Officer of
the Australian Crime Commission and the Commissioner of the Australian Federal
Police ought to proactively report matters to the Parliamentary Joint Committee
on Law Enforcement.
Recommendation 6
4.40
Subject to the above recommendations, the committee recommends that the
Senate pass the National Security Legislation Amendment Bill 2010 and the
Parliamentary Joint Committee on Law Enforcement Bill 2010.
Senator Trish Crossin
Chair
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