Chapter 2
Key Issues
2.1
This chapter examines the key issues arising from the Bill and then
outlines the committee's views and recommendations. The term 'post-charge' is
used to indicate both 'post-charge' and 'post-confiscation application' while
the term 'pre-charge' is used to indicate both 'pre-charge' and
'pre-confiscation application'.
2.2
Of the five submissions received, three supported the Bill[1]
while two raised concerns about the Bill.[2]
Critics of the Bill questioned the general legality of allowing post‑charge
examinations and hearings and raised specific concerns about some of the substantive
provisions proposed by the Bill that would allow disclosure of information
obtained in a post-charge examination or hearing to prosecutors.[3]
Constitutional validity of the Bill
2.3
This chapter will not attempt to examine the constitutional validity of
the Bill given that the committee did not receive sufficient evidence about
this issue. However, it is noteworthy that three submissions pointed to the
severability clauses that have been included in the Bill. These submissions
acknowledged that the inclusion of the severability clauses would imply that the
drafters of the Bill expected that key provisions of the Bill could be made
subject to judicial scrutiny should the Bill be passed in its current form.[4]
The New South Wales Director of Public Prosecutions (NSW DPP) submitted:
On one view this approach emphasises the uncertainty in the
law by highlighting the parts of the Act that may be construed by the courts as
unlawful. Accordingly the law in this respect will remain uncertain until each
part is challenged. I can appreciate that it is desirable for the other
provisions to remain in force while the contentious parts are disputed.
Nevertheless, I am concerned that while this uncertainty remains prosecution
agencies will continue to have to grapple with the issues I have referred to...[5]
The need for a balance to be reached
2.4
Both the Law Council of Australia (LCA) and the Australian Human Rights
Commission (AHRC) posed the question of whether the stated aims of the Bill, to
protect the community from serious and organised crime and to prevent
corruption in law enforcement agencies, are sufficient to justify the extent to
which the Bill would infringe upon common law principles protecting the rights
of an accused to a fair trial.[6]
The LCA acknowledged that the provisions of the Bill are 'rationally connected'
to the specified objectives of the Bill, but argued that the Bill represents a
disproportionate response to its aims, notwithstanding the purported safeguards
integrated into the Bill.[7]
The AHRC stopped short of challenging the validity of the Bill but argued that
the Bill in its current form would not provide an appropriate balance between
the investigation functions of ACC and ACLEI and the rights of an accused
person. The AHRC recommended that the Bill should be amended, to provide
greater protections to an accused person.[8]
2.5
A contrasting view was formed by the PJCHR, which concluded that:
The committee considers that the powers granted to the ACC
and LEI Commissioner to compulsorily question a person who has been charged
with an offence significantly limits the right to a fair trial, in particular,
the principle of equality of arms and the protection against
self-incrimination. However, the statement of compatibility provides a detailed
justification of why these powers are considered reasonable and necessary. On
balance, having considered the relevant safeguards provided in the bill, the
committee considers that the limitation on fair trial rights has been
justified.[9]
The significance of charging a
person with an offence
2.6
The AHRC highlighted that the time that a person is charged with an
offence is significant as it represents the time at which the investigation
process must give way to the judicial process, which falls into the exclusive
domain of the courts. The AHRC, paraphrasing judicial authority, stated that:
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.[10]
2.7
The AHRC argued that any proposal to allow post-charge examinations or
hearings would need to be carefully scrutinised, as an accused person would
lose the control over the way in which he or she wished to answer the
charge(s). Further, an accused would face even more hindrances if material from
those post-charge processes were disclosed to prosecutors.[11]
2.8
The LCA took a similar position, stating:
...there remains a real risk that a person who is examined, in
detail, as to the circumstances of the alleged offence, is very likely to
prejudice his or her defence. An accused person should not be forced to divulge
his or her position prior to trial or to assist law enforcement officers in
gathering supplementary information to aid in his or her prosecution.[12]
2.9
The LCA recommended that the Bill should be amended to:
...require authorisation from a Federal Court [J]udge before an
ACC or Integrity Commissioner summons is issued to a person who is subject to
criminal proceedings, and for that Judge to prescribe limitations on the
matters which may be covered by the examination.[13]
2.10
ACLEI noted that prosecutorial proceedings may be quite lengthy,
especially if the accused contests the charge(s), engages in pre-trial
arguments and/or institutes appeals prohibiting post-charge examinations. It
follows that any restriction of post‑charge investigatory processes would
have the potential to delay and significantly inhibit investigations.[14]
2.11
The statement of compatibility notes that prohibiting post-charge investigatory
processes would hamper the effectiveness of the ACC and ACLEI to investigate
serious and organised crime and corruption respectively. The statement of
compatibility points out that such a restriction would force the ACC and ACLEI
to conduct pre-charge investigations, which may alert a person of interest to
impending charges or proceedings and allow that person to dispose of
incriminating material, disperse or hide criminal proceeds or notify other
potential persons of interest.[15]
2.12
The CDPP emphasised that the case law relating to post-charge
investigations remains unclear and has been used as a defence, leading to
temporary or permanent stay applications. The CDPP stated that:
This is creating very considerable delays for affected
prosecutions and has placed an enormous strain upon the resources of the CDPP
and investigative agencies. Because case law is necessarily confined by its
facts, the judgments arising from those challenges will be at best
incrementally clarifying and at worst inconsistent. Amending legislation is the
only cure.[16]
Specific provisions of the Bill
2.13
The provisions of the Bill that raised the most concerns were proposed
subsections 25A(9A) and 30(5) and proposed sections 25C, 25D and 25E of the ACC Act,
equating to proposed subsections 90(2) and 96(4) and sections 96AB, 96AC and 96AD
of the LEIC Act.
Non-disclosure directions
2.14
As noted in chapter 1, proposed subsections 25A(9A) of the ACC Act and
90(2) of the LEIC Act would require an examiner or the Integrity Commissioner
to direct that examination or hearing material must not be disclosed if the disclosure
might prejudice a person's safety or would reasonably be expected to prejudice
the fair trial of the examinee or witness, where the examinee or witness has
been charged with a related offence or a charge is imminent.
2.15
Both the LCA and AHRC recognised that the proposed subsections would reduce
the number of circumstances where a non-disclosure direction would be required,
thereby potentially compromising a person's right to a fair trial.[17]
The AHRC argued that, under the proposed subsections:
...if there was no imminent charge but there was a real
prospect of a future charge, there would be no requirement on an examiner to
make a direction...The Explanatory Memorandum asserts that "the only time at
which...prejudice could occur is where the examinee has either been charged with
an offence or where such a charge is imminent". As a result, it suggests
that it is unnecessary to require a non-publication direction if charges are
not already imminent. The Commission disagrees with this analysis...a
non-publication direction remains appropriate where there is a real prospect of
future charges.[18]
2.16
The LCA also commented on the change in the threshold from 'might
prejudice' to 'would reasonably be expected to prejudice' the fair trial of the
relevant person, by stating:
This amendment would introduce confusion between the
juxtaposition of the word 'would' with 'reasonably be expected'. In addition,
it would be a very high threshold to meet with the potential for an accused's
fair trial rights to be unduly compromised.[19]
2.17
The EM notes that the proposed amendments are intended to give an
examiner and the Integrity Commissioner greater certainty about the
circumstances in which he or she would be required to make a non-disclosure direction.
The EM goes on to reason that an examiner or the Integrity Commissioner 'should
not be required to make a direction to protect against unforeseeable risks that
the disclosure or use of examination [or hearing] material may prejudice' the
fair trial of the examinee or witness. The EM also states that the change is
intended to clarify that the:
...only person whose trial may be prejudiced by the disclosure
or use of examination [or hearing] material is the examinee [or witness]. The
only time at which that prejudice could occur is where the examinee [or
witness] has either been charged with an offence or when such a charge is
imminent.[20]
Disclosure of post-charge material
and post-charge derivative material
2.18
The AHRC identified that the insertion of new subsections 24A(2) and
25A(6A) of the ACC Act (equating to proposed subsections 82(1A) and 83(2A) of
the LEIC Act respectively) would, if constitutionally valid, be sufficient to
overcome the decision of the HCA in the X7 case. The AHRC then noted that
proposed section 25C of the ACC Act (equating to proposed section 96AB of the
LEIC Act) would allow for disclosure of post-charge examination (or hearing)
material while proposed section 25D of the ACC Act (equating to proposed
section 96AC of the LEIC Act) would allow for disclosure of post-charge
derivative material. The AHRC argued the Bill is 'overly permissive' in
providing mechanisms for the disclosure of post-charge examination or hearing material
and derivative material to prosecutors.[21]
The AHRC questioned whether such disclosures could ever be considered to be in
the interests of justice, given the decisions of the HCA in the Lee No 2 case
and the X7 case, and recommended a prohibition on disclosure of post-charge
material and post-charge derivative material to a prosecutor of the examinee or
witness.[22]
The AHRC cited that the only example provided in the EM, of where such
disclosures may be considered appropriate, is where the derivative material is
exculpatory. The AHRC argued that this example provides 'an unconvincing
rationale for creating a mechanism for such disclosure',[23]
as the disclosure of exculpatory evidence obtained under compulsion also:
...has the potential to prejudice the trial of an accused both
by disclosing defences that may be raised and by allowing the prosecution to
direct further investigations to be conducted in advance of the trial to modify
the prosecution case in light of those anticipated defences.[24]
2.19
The CDPP reasoned that the Bill does not propose to 'create' a mechanism
for disclosure, by stating that:
At a conceptual level, the Bill does not seek to expand the
framework within which compulsorily obtained material can be provided to the prosecution
by the ACC or ACLEI, or to expand the uses to which the prosecution may put
such material...[25]
2.20
ACLEI submitted a similar view, by concluding that:
The Bill does not give ACLEI any new coercive powers or
expand current powers. Rather—having regard to the decisions and guidance of
the High Court in relation to the fair trial principle—the measures restore,
clarify and suitably restrain the Integrity Commissioner’s coercive
information-gathering powers to the way they were originally intended to operate.
The Bill...specifically permits investigators to use hearing
material to find admissible evidence for prosecutions; and places a structure
of rules in place to enable the dissemination of hearing and derivative
material to prosecutorial authorities in a way that will protect a person's
right to a fair trial.[26]
2.21
Furthermore, as noted in chapter 1, any disclosure of post-charge
material or post‑charge derivative material could only be permitted under
a court order made under new proposed subsections 25E(1) of the ACC Act or
96AD(1) of the LEIC Act, where the court determined that the disclosure would
be required in the interests of justice. Furthermore, under proposed
subsections 25E(3) of the ACC Act and 96AD(3) of the LEIC Act, the proposed
disclosure powers are not intended to restrict a court's power to make any
orders that it deems necessary to ensure that an examinee or witness receive a
fair trial. ACLEI submitted that this:
...clarifies that the court remains responsible for overseeing
the process relating to the prosecution of a person, and has the opportunity to
scrutinise a particular area of decision-making that would otherwise have the
potential to affect the fair trial of the witness.[27]
2.22
The statement of compatibility explains that:
These provisions ensure that the court hearing the charges
against the examinee or witness retains control over its proceedings to ensure
that they are fair.[28]
2.23
The LCA challenged whether a judge would be in a reasonable position to
determine whether a disclosure would be required in the interests of justice.
The LCA stated that:
...because there has not yet been an order by the court to
determine that the material may be lawfully...disclosed to a prosecutor, neither
the prosecutor of the charge [n]or the defence will be able to make
representations to the court about whether disclosure will be in the interests
of justice. A judge would be required to make a determination as to whether a
disclosure would be in the interests of justice only on the basis of
information provided by the ACC or the Integrity Commissioner without any
knowledge of what the defence case may be. Therefore, the purported safeguard
of allowing a court determination in the interests of justice in these
circumstances may not be sufficient to protect the right to a fair trial.[29]
2.24
The EM clarifies that the question of whether an order would be required
'in the interests of justice' would need to be determined with regard to the
nature and content of the material sought to be disclosed, the circumstances of
the case and the extent to which disclosure of the material may prejudice the fair
trial of the examinee or witness or the safety of any person.[30]
The CDPP stated that a court would be in a reasonable position to make such a
determination, stating that:
To the extent that disclosure of post-charge material may be
required, it is appropriate that this decision is made by the court. There are
clear precedents for this type of court‑supervised process.[31]
2.25
The CDPP also provided a reassurance that on a practical level it did
not expect to seek access to post-charge material as a matter of course. The
CDPP explained that:
Unless the material is admissible as evidence in court, the
CDPP's experience is that any benefit derived from access to that material is
outweighed by the exposure of the prosecution process to an additional avenue
of collateral attack.[32]
Committee views and recommendations
2.26
The committee agrees with the submission of the LCA that the right to a
fair trial acts as a 'central pillar' of Australia's criminal justice system
and a 'cardinal requirement of the rule of law'.[33]
The committee believes that a person's right to a fair trial should only be
limited if the limitation is reasonable, necessary and proportionate to a
legitimate goal.
2.27
The committee accepts that compelling a person, under threat of criminal
sanctions, to answer questions after he or she has been charged with a related
offence, or made the subject of confiscation proceedings, could affect the
extent to which he or she could enter the trial or proceedings on an equal
footing to the prosecuting authority. Furthermore, the disclosure of
post-charge examination or hearing material could have the effect of limiting
the person's right not to incriminate him or herself.
2.28
With that in mind, the committee acknowledges the two main issues that
arise from the Bill:
-
Should the ACC and ACLEI be permitted to conduct an examination
or a hearing after the person subject to the process has been charged with a
related offence or such a charge is imminent?
-
Should the ACC and ACLEI be allowed to disclose information
received from post-charge examinations and hearings, subject to the relevant
safeguards, to a prosecutor?
Permitting post-charge examinations
and hearings
2.29
The committee notes that the Bill was drafted to clarify the original intention
behind the ACC Act and the ACLEI Act, to allow for post-charge investigations. The
committee emphasises that the X7 case and related cases have brought the
validity of post-charge investigations into question. This has had a
significant negative impact on the operations of the ACC and ACLEI, limiting
their effectiveness to protect the community from serious and organised crime
and to prevent corruption in law enforcement agencies. In the committee's
opinion the objectives of the Bill are legitimate, and the proposed provisions
of the Bill provide a necessary, reasonable and proportionate means of
achieving those objectives.
2.30
However, the committee notes that the Bill does not include any
safeguards to limit the proposed power to conduct post-charge examinations and
hearings. It follows that an affected person would have limited recourse to the
courts in circumstances where a post-charge investigation unduly interferes
with that person's right to a fair trial. Therefore, the committee suggests the
government to consider adding a provision to the Bill as recommended by the LCA
to require an ACC examiner or the Integrity Commissioner to seek the authorisation
of the Federal Court prior to commencing a post-charge examination or hearing.[34]
Such a provision could help to ensure that a court would retain a level of
discretion over post-charge investigations and, as such, would provide a
further safeguard to the right to a fair trial.
Permitting post-charge disclosures
2.31
Although the Bill proposes to allow the ACC and ACLEI to disclose, to a
prosecutor, information obtained through a post-charge examination or hearing,
it also contains a number of safeguards. These safeguards include the requirement
for non‑disclosure directions and the requirement that a court order must
precede a disclosure. These safeguards protect the rights of the individual who
has been charged or for whom a charge is imminent and give a court full
discretion over whether the relevant disclosure could be made, in the interests
of justice. Furthermore, courts would retain all powers that would ensure the
fair trial of a person charged with an offence related to the subject matter of
the investigation or for whom a such a charge is imminent.
2.32
The committee takes the view that overall the Bill strikes a fair and
appropriate balance between the need to protect the right to a fair trial of an
examinee or witness and the need to ensure that the ACC and ACLEI are not
adversely hindered in the performance their respective roles.
Recommendation 1
2.33
The committee recommends that the Senate pass the Bill.
Senator the
Hon Ian Macdonald
Chair
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