Bills Digest no. 130 2014–15
PDF version [725KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jonathan Mills, Law and Bills Digest Section
Cat Barker, Foreign Affairs, Defence and Security Section
22 June 2015
Contents
The
Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Concluding comments
Appendix: Comparison of current ACC and ACLEI legislation
and comparable state agencies
Date introduced: 26
March 2015
House: House of
Representatives
Portfolio: Justice
Commencement: Sections
1 to 3 commence on the day of Royal Assent. Schedules 1 and 2 commence on the
28th day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The Australian Crime Commission
(ACC) is a national criminal intelligence agency with specialist investigative
capabilities to collect, correlate, analyse and share criminal information and intelligence
with all Australian law enforcement agencies. The ACC has been specifically
tasked to reduce the threat and impact of serious and organised crime on
Australia.
The Integrity Commissioner, supported by the Australian
Commission for Law Enforcement Integrity (ACLEI), is responsible for
preventing, detecting and investigating serious and systemic corruption issues
in prescribed Australian Government law enforcement agencies.
Both these agencies are empowered to conduct compulsory
examinations or hearings of people in order to obtain information that would
not otherwise be available to investigators. A person cannot refuse to answer a
question, or produce a document or thing, in an examination or a hearing.
Recent Court decisions, delivered in 2013 and 2014, have stated
that compulsory examinations or hearings cannot be carried out in relation to
matters for which a person has been charged. Some of these decisions noted that
only express and clear legislative wording could permit such questioning.
The Bill would provide explicitly confer powers on the ACC
examiners to conduct examinations, and on ACLEI to conduct hearings, in
situations in which a person has been charged with an offence that the
questioning may touch upon.
The amendments proposed by the Bill infringe upon the
rights to a fair trial or hearing, while providing certain safeguards.
Concerns have been raised by the Australian Human Rights
Commission, the Law Council of Australia, and the Australian Greens, that the
rights to a fair trial and against self-incrimination are not appropriately
protected under the proposed changes, and that this would not be a reasonable
response to the policy need to maintain the ability to conduct post-charge
examinations or hearings.
The Government says that this infringement is necessary,
reasonable and proportionate in light of the real public policy need to
discover information relating to serious and organised crime and law
enforcement corruption, even once charges have been laid relating to a matter.
The purpose of the Law Enforcement Legislation Amendment
(Powers) Bill 2015 (the Bill) is to:
- amend
the Australian Crime Commission Act 2002 (ACC Act)[1]
to make it clear that Australian Crime Commission (ACC) examiners can conduct
certain examinations, which recent court decisions say are not lawful under the
current drafting
- similarly
amend the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)[2]
to clarify the powers of the Integrity Commissioner, supported by the Australian
Commission for Law Enforcement Integrity (ACLEI), to conduct hearings and
- make
a consequential amendment to the Public Interest Disclosure Act 2013 (PID
Act),[3]
to ensure that the definition of ‘designated publication restriction’ refers to
the amended provision in the ACC Act.
The Bill is divided into two schedules.
- Schedule
1, divided into two parts, which introduces amendments to the ACC Act
and the PID Act and
- Schedule
2 introduces amendments into the LEIC Act.
As the relevant provisions of the ACC and LEIC
Acts are similar, Schedules 1 and 2 make similar amendments.
The ACC is a national criminal intelligence agency with
specialist investigative capabilities to collect, correlate, analyse and share
criminal information and intelligence with all Australian law enforcement
agencies. The ACC has been specifically tasked to reduce the threat and impact
of serious and organised crime on Australia.
The Integrity Commissioner, supported by the ACLEI, is
responsible for preventing, detecting and investigating serious and systemic
corruption issues in prescribed Australian Government law enforcement agencies.
The ACC and ACLEI are empowered to conduct examinations
and hearings which may involve compelling a person to answer questions about
matters, or produce documents or things, relating to an ACC special operation
or special investigation into serious and organised criminal activity, or relating
to an investigation into law enforcement corruption. A person cannot refuse to
answer a question, or produce a document or thing, in an examination or a
hearing.
These examinations and hearings enable the ACC and ACLEI
to obtain information that would not otherwise be available, or which could
only be obtained after long and complex investigations. Examination material,
for example, plays an important role in assisting the ACC to develop an
understanding of how serious and organised crime operates, to analyse this
information with other relevant information and to disseminate it to Commonwealth,
state and territory partner agencies as part of an intelligence product.
A person cannot refuse to answer a question, or produce a
document or thing, in an examination or a hearing on the basis that it might
incriminate them, or expose them to a penalty. However, there are limitations
on the circumstances in which answers can be used in evidence against the
person in criminal proceedings or proceedings for the imposition of a penalty.
The powers of the ACC and ACLEI to conduct examinations
and hearings have been considered in a number of recent cases, discussed below,
including R v Seller and McCarthy (2013) 273 FLR 155 (Seller and
McCarthy),[4]
X7 v Australian Crime Commission (2013) 248 CLR 92 (X7),[5]
Lee v NSW Crime Commission (2013) 251 CLR 196 (Lee No. 1)[6]
and Lee v R (2014) 88 ALJR 656 (Lee No. 2).[7]
These cases have placed limits on the use of the
examination powers in certain circumstances in which they had been previously
utilised. The Bill is intended to address these issues to clarify the ability
of the agencies to exercise their powers as before, in circumstances which the Government
has stated is in accordance with the original policy intent.
ACC Examination Powers
The following is a summary of the current operation of ACC examinations.
An ACC examiner may conduct examinations as part of a
special ACC operation/investigation.[8]
The board of the ACC must determine work priorities and approve the use of
coercive powers by naming the priorities as a special operation or a special
investigation. Special operations focus on gathering intelligence on a
particular criminal activity, while special investigations are designed not
only to collect intelligence but also to disrupt and deter identified criminal
groups through collecting evidence of criminal activity that may result in
arrests and/or seizures of illegally obtained assets.
The examiner may conduct the proceedings as they see fit.
They may allow legal practitioners to be present. They may determine when it is
appropriate for a witness to be examined or cross-examined. And while
proceedings must be held in private, a witness must be informed of any others
who are present.[9]
The Evidence Act 1995 (Cth) does not apply to such an
examination so common law rules of evidence, subject to the ACC Act
provisions, apply.[10]
The examiner may make such arrangements as are necessary to avoid prejudice to
the safety of the person summoned, or protect them from intimidation or
harassment.[11]
The examiner has the same protection and immunity in exercising their functions
as a Justice of the High Court of Australia.[12]
The examiner is exempt from serving a record of written reasons for decisions
to issue a summons under the ACC Act.[13]
Any report that sets out findings that an offence has been
committed, or makes a recommendation to institute a prosecution, must not be
made available to the public unless it is based on evidence that would be
admissible in prosecution of a person for that offence.[14]
Examinations
Examiners have power to summon or compel witnesses to attend
examinations and to give evidence on oath or affirmation when the Board has
made a determination of a special operation or special investigation.[15]
A person and their lawyer (if legal professional privilege does not apply)[16]
must not fail to attend or answer questions, where it is proven that a valid
summons was issued, under penalty of fines and/or imprisonment.[17]
The person may challenge the validity of the summons.[18]
The person and their lawyer may also be held in contempt of the ACC if they
fail to attend or answer questions.[19]
It is an offence to obstruct or hinder the ACC (or an examiner) in the
performance of their functions, or to disrupt an examination or threaten any
person present at an examination before an examiner.[20]
Double jeopardy does apply to offences under the ACC legislation and state, territory
and Commonwealth offences.[21]
Examinations—self incrimination
A person appearing before an ACC examiner as a witness may
not refuse to answer a question or produce a document or thing on the grounds
of self-incrimination—that is, the privilege is abrogated.[22] Subsection 30(5) provides a
‘use immunity’ for a person who, before answering a question or producing a
document or thing, claims that it might tend to incriminate them, or make them
liable to a penalty. This type of immunity prevents self-incriminating
information from being used directly as evidence against the person who
provided it. The use immunity applies to criminal proceedings and proceedings
for the imposition of a penalty, other than confiscation proceedings or
proceedings relating to giving false evidence.[23]
Derivative use immunity is not provided. This means that self-incriminatory
material may still be used to obtain other evidence that would be admissible
against the person. The ability to use derivative material from an examination
does not automatically compromise a fair trial.[24]
The ACC Act does not include any special provisions
relating to questioning of a person facing a current or imminent charge or
proceedings. It does not exclude the ACC from questioning a person in such
circumstances, nor does it explicitly allow it. As outlined separately in the
‘Committee consideration’ section of this Digest, a Parliamentary committee
recommended amendments in 2005 to prevent the ACC from examining a person
subject to criminal or confiscation proceedings on matters relevant to those
proceedings. The courts have interpreted the existing provisions as not
allowing this. This Bill expressly aims to ensure that such examinations are
permitted.
Examinations—right to a fair trial
The right to a fair trial is generally accepted as a fundamental
element of Australia’s criminal justice system, although the specific elements
of the concept have not been judicially determined. The right is discussed in
more detail in the ‘Issues’ section of this Digest.
Coercive powers, such as the compulsory examination powers
of the ACC, may be considered to interfere with a person getting a fair trial
as they may result in a person disclosing material which would not have been
available to the prosecution during a judicial, rather than executive process.
The person may also disclose material which could limit their options for
conducting their own defence. This may thus provide a risk to the
administration of justice.[25]
However, under the current provisions of the ACC Act,
the prosecution does not necessarily gain an unfair advantage by the mere fact
of the examination occurring as the examiner has the power, under section 25A
of the ACC Act,[26]
to prevent disclosure of the information obtained.[27]
In other words, the safeguards provide that there is not necessarily a risk to the
administration of justice simply due to a compulsory examination occurring.
The dissemination of evidence to a prosecuting authority will
only compromise a trial if it is considered to prejudice a fair trial.[28]
To force the accused to confess their guilt, give away information that may
provide for their defence or explain their conduct relating to the charges, may
be considered to prejudice a fair trial.[29]
Any dissemination is currently subject to and overridden
by the examiner’s non-publication directions, consistent with the decision of Australian
Crime Commission v OK [2010] FCAFC 61 where a majority of the Federal Court
upheld the legislation.[30]
Examinations—Confidentiality
The ACC Act has several mechanisms designed to
protect confidentiality. The examiner determines whether confidentiality
applies to evidence that is given or the fact that a person is going to give
evidence, and whether a non-publication direction should be given.[31]
The examiner is required to do this when a disclosure might prejudice the
safety or reputation of a person or prejudice the fair trial of a person who
has been, or may be, charged with an offence.[32]
A court may require that evidence directed to be
confidential or not published is made available to a person charged with an
offence if it is desirable in the interests of justice.[33]
The interests of justice have no definition, and can encompass a wide range of
factors.[34]
Cases affecting the operation of
the agencies
As outlined in the Explanatory Memorandum, several recent cases
could affect the ACC’s use of its examination powers. These cases include:
·
Seller and McCarthy,[35]
where the NSW Court of Criminal Appeal found that the use of evidence derived
from examination material in criminal proceedings against the examinee could,
in some circumstances, be unfair.
- X7 v Australian Crime Commission (X7),[36]
where a 3:2 majority of the High Court found that the ACC Act did not
authorise the ACC to examine a person who had been charged with an offence
about the subject matter of the charge (referred to here as a post-charge
examination). The majority noted that such an examination would affect the
fairness of the examinee’s trial and could only be authorised if there were
clear words indicating Parliament’s intention.
- Lee No. 1,[37]
where a 4:3 majority of the High Court found that the Criminal Assets
Recovery Act 1990 (NSW) authorised the post-charge examination of a person.
The majority distinguished the decision in X7 on the basis that the relevant
examination occurred as a result of a court order.
- Lee No. 2,[38]
where the High Court unanimously found that the NSW Crime Commission’s unlawful
disclosure of the accused’s examination transcript to the prosecution rendered
the trial fundamentally unfair and ordered a retrial. The examination occurred
before the accused was charged with an offence.[39]
According to the Explanatory Memorandum, these cases have
had an impact on ACC operations. Following the decision in X7, for
example, the ACC has stated that it no longer examines persons already charged
with an offence if the questioning could touch upon related matters.
The decision in X7 will be discussed in more detail
below, as it touches upon both the motivations for the current amendments and
the balancing of rights and public interest in this area of criminal law.
X7 v
Australian Crime Commission [2013] HCA 29
This case is one of the more important of the recent cases
which not only affected the examination powers of the ACC and ACLEI, but
clearly identified the ‘principle of legality’, which requires ‘that a
statutory intention to abrogate or restrict a fundamental freedom or principle
or to depart from the general system of law must be expressed with irresistible
clearness’.[40]
This Bill is intended establish this statutory intention
and to clarify the operation of examinations by the agencies.
The X7 case is also important because it provides
consideration of the possible constitutional issues which may arise as a result
of post-charge examinations. In particular:
... the plaintiff's case was that the examination powers should
be given a restricted meaning because their exercise after charge would
otherwise constitute legislative authorisation of executive interference with
pending criminal proceedings, and in particular an interference with due
process entrenched by Ch III (including s 80) of the Constitution. As used by
the plaintiff, "due process" encapsulated those rights of an accused,
including the right to silence, designed to require the prosecution to prove
its case without the assistance of the accused. In the event that the
examination provisions, on their proper construction, did authorise examination
after charge, that was said to involve an invalid attempt to confer the
judicial power of the Commonwealth on the examiner.[41]
The majority in this case, Hayne and Bell JJ (with Kiefel J
agreeing), found that, under the current ACC Act, an examiner does not
have the power to require a person to answer questions regarding the subject
matter of an offence that the person has been charged with (but not yet tried
for), and that the above quoted constitutional Chapter III question regarding
interference with real administration of justice did not arise.[42] French CJ and Crennan J
also found that the examiner does not have the power to compel post-charge
examination, but did consider the Chapter III question and determined that
Chapter III is not violated.[43]
Their Honours explained that:
If there is some failure to employ the protective provisions
such that the prosecution would obtain an unfair forensic advantage, a trial
court's inherent power to punish for contempt, including a power to restrain a
threatened contempt, would be available, as in Hammond. A failure by an
examiner to give any, or any adequate, direction under s 25A(9), or an error by
the CEO in exercising the power to revoke or vary a direction under s 25A(10),
would also be remediable by recourse to the constitutional writs issued
pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary
Act 1903 (Cth).
These considerations show that the examination provisions do
not authorise executive interference with the curial process of criminal trials
(footnotes omitted).[44]
The Court considered that other constitutional arguments could
also be rejected:
The plaintiff's main submission in relation to Ch III, that
the examination provisions are invalid as a legislative authorisation of
executive interference with the curial process of criminal trials for
Commonwealth indictable offences, has been addressed, and answered, in the
reasons above. There were two other submissions concerning Ch III which have
not been dealt with so far.
The plaintiff's submission that the privilege against
self-incrimination is a necessary part of trial by jury under s 80 of the
Constitution must be rejected. In Sorby, members of the Court agreed with a
unanimous conclusion reached earlier in Huddart, Parker, that the privilege
against self-incrimination is not a necessary part of trial by jury. A view to
the contrary expressed by Murphy J, which his Honour advanced earlier in
Hammond, has not commanded any subsequent assent and must be rejected.
The plaintiff's further submission, that s 25A(9) empowers an
examiner to exercise judicial power, must also be rejected. Executive inquiries
into facts, the subject of pending proceedings, do not involve an exercise of
judicial power – those conducting such inquiries are unable to make any final
determination as to the facts or to apply the law to them (footnotes omitted).[45]
Justices Hayne and Bell approached consideration of the ACC
Act by stating that it is not relevant whether compulsory examination meets
some general standard of fairness,[46]
but rather stated that the ACC Act cannot be considered to authorise anything
which would amount to contempt.[47]
The investigation, prosecution and trial of an indictable Commonwealth offence
demonstrates that, at every stage, the process of criminal justice is
accusatorial and that the Crimes Act provides that:
... if a person is under arrest for a Commonwealth offence,
"an investigating official" (which includes a member of the
Australian Federal Police and a member of the police force of a State or
Territory) "must, before starting to question the person, caution the
person that he or she does not have to say or do anything, but that anything
the person does say or do may be used in evidence". Section
23F(3) provides that the obligation imposed by s 23F(1)
to administer a caution does "not apply so far as another law of the
Commonwealth requires the person to answer questions put by, or do things
required by, the investigating official".
Section 23F, with its requirement that, in general, persons
under arrest for Commonwealth offences are to be cautioned that they need not
say or do anything, is, of course, an important manifestation of an accused's
right to silence (footnotes omitted).[48]
It is against this background that the ACC Act
compulsory examination power would, if it existed post-charge, affect a
fundamental alteration to the process of criminal justice49] and therefore the deliberate
impact on the accusatorial process must be made clear in the statute.[50]
As regards the balancing of the public interest with the
abrogation of certain rights, Chief Justice French and Crennan J stated that
the examination provisions do not authorise executive interference in criminal
trials,[51]
and:
The functions of the ACC, which include the investigation of
serious and organised crime, serve a public interest which is apparent from the
ACC Act. An examination cannot be held for a purpose other than the purpose of
investigating serious and organised crime, which remains the same whether a
criminal charge has been laid or not. It is consistent with the purpose of the
compulsory examination powers, which aid the functions of the ACC, that those
powers are not exhausted upon the laying of a charge against an individual. The
ACC Act reflects a legislative judgment that the functions of the ACC would be
impeded if the laying of a charge against one member of a group by a prosecutor
prevented continuing investigation of the group's activities by way of examination
of that member by the ACC.
To summarise, the public interest in the continuing
investigation of serious and organised crime is elevated over the private
interest in claiming the privilege against self-incrimination. However, whilst
a person examined under the ACC Act is compelled to give an answer, or produce
a document or thing, which might otherwise be withheld because of the privilege
against self-incrimination, the interest in that person being tried openly and
fairly is protected both by the prohibition on direct use of answers given, or
documents or things produced, and by the provisions safeguarding the fair trial
of that person.[52]
Legislative position of comparable
state agencies
In most instances, individuals required to provide
information or evidence to state crime and integrity commissions may not refuse
to answer a question or produce a document or thing on the grounds of self‑incrimination.
Except under the Integrity Commission Act 2009 (Tas), under which
all claims of privilege are decided by the Supreme Court, the privilege against
self-incrimination is abrogated and a use immunity (but not a derivative use
immunity) applies.[53]
The legislation governing five of those agencies explicitly addresses the issue
of questioning a person facing proceedings, and differs in approach. In
particular:
- the
New South Wales Crime Commission may only question a person facing a ‘current
charge’ on matters relevant to the charge if the Supreme Court grants leave
to do so
- the
Crime and Corruption Commission (Queensland) may question a person on
matters relevant to current criminal proceedings against them
- the
Corruption and Crime Commission (Western Australia) may not question a
person about matters relevant to an offence with which the person ‘stands
charged’
- the
Independent Commissioner Against Corruption (South Australia) may exercise
its powers despite any current investigation, prosecution, proceedings or
charges relating to a matter and
- the
Tasmanian Integrity Commission must not require a person to give
evidence relevant to a matter for which they have been charged.[54]
Where the legislation permits questioning of a person
charged with an offence or facing proceedings, some additional safeguards are
generally included. Further detail is set out in the Appendix to this
Digest.
The Acts governing the Independent Commission Against
Corruption and the Police Integrity Commission (both NSW) and the Independent
Broad-based Anti-corruption Commission (Victoria), like the ACC Act and
the LEIC Act, are silent on the matter.
The Senate Legal and Constitutional Affairs Legislation
Committee tabled its report on the Bill on 18 June 2015.[55]
The majority of the Committee, chaired by Senator Ian Macdonald, did not
recommend any changes to the Bill.[56]
The dissenting report of the Australian Greens[57]
recommended that the Bill not be passed in its current form, and supported the
position of the Law Council of Australia that the Government should:
- undertake
a comprehensive review of the ACC Act to consider whether it provides
for investigative powers while also protecting common law rights and
- clarify
that all the provisions of the Bill are within the constitutional legislative
power of the Commonwealth.[58]
Parliamentary Joint Committee on
the Australian Crime Commission
The Parliamentary Joint Committee on the Australian Crime
Commission (PJC-ACC; now the Parliamentary Joint Committee on Law Enforcement)
reported on a review it conducted of the ACC Act in
November 2005.[59]
The PJC-ACC noted that it was unclear under the ACC Act whether an
examiner was permitted to question a person facing criminal or confiscation
proceedings on matters relevant to those proceedings. It considered the
position should be clarified as a matter of priority—but not in the way
proposed in the current Bill:
The Committee recommends that
the Attorney-General's Department and the Australian Crime Commission develop
legislation as a matter of urgency to ensure that a person summonsed by the
ACC, at a time when they are the subject of criminal or confiscation
proceedings, may only be examined in relation to matters quarantined from those
material to the pending proceedings.[60]
The Government of the time did not respond to the report. A
response provided in May 2010 by the Rudd Government supported the
recommendation.[61]
The Australian Labor Party supported the majority
recommendation in the Senate Standing Committee on Legal and Constitutional
Affairs report on the Bill.
As noted in the ‘Committee consideration’ section of this
Digest, the Australian Greens did not support the majority report, and
delivered a dissenting report recommending that the Bill be not be passed in
its current form.[62]
The Australian Human Rights Commission (AHRC) noted that:
The point at which a person is charged with a criminal offence
marks a significant change in the criminal process from the investigation of a
criminal offence to its prosecution. The laying of a charge marks the first
step in engaging the exclusively judicial task of adjudicating and punishing
criminal guilt.
The conduct of an inquiry, particularly a compulsory
examination, in parallel to a person’s criminal prosecution would ordinarily
constitute a contempt of court because the inquiry presents a real risk to the
administration of justice.[63]
The AHRC submitted that if this were to occur, stronger
safeguards should be provided to ensure that post‑charge examination and
derivative material is not provided to the prosecution in cases relating to
examined matters.[64]
The AHRC made various recommendations to amend the Bill, in particular proposed
sections 25C, 25D, 25H, 25A(9A) of the ACC Act and the related
sections of the LEIC Act, in order to remove the ability for such
information to be provided to prosecutors.
The Law Council of Australia (LCA) does not believe that
the Bill should be passed in its present form, and made several recommendations
designed to protect the right to a fair trial.[65]
In particular, the LCA recommended that examination should be deferred until
charges had been dealt with, or, in the alternative, that mechanisms be put in
place to limit examinations and the disclosure of related information. The LCA
also called for a comprehensive review of the ACC Act.
In response to a current Australian Law Reform Commission
Inquiry into Traditional Rights and Freedoms— Encroachments by Commonwealth
Laws, some interest groups have expressed opposition to the existing powers
of the ACC to conduct coercive examinations and utilise derivative evidence in
prosecutions. These groups say that such powers unjustifiably contravene the
rights to natural justice, a fair trial, and the privilege against self‑incrimination.[66]
However, other submissions to the Inquiry noted the long
history of parliamentary supremacy in excluding these rights in certain
circumstances. The submissions asserted that this is appropriate where the
exclusion is proportionate and necessary, and where it appropriately balances
the rights of the individual with the needs of public policy.[67]
The Explanatory Memorandum states that there are no
financial implications from this Bill. If the measures introduced in the Bill
alter investigative or examination decision making, some indirect impact on
agency budgets may occur.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[68]
The Explanatory Memorandum notes that the measures in this
Bill engage the following human rights, but that the Government considers that
‘to the extent that the measures in those Schedules may limit human rights,
those limitations are necessary, reasonable and proportionate’:[69]
-
the right to a fair trial and a fair hearing under article 14 of
the International Covenant on Civil and Political Rights (ICCPR)
-
minimum guarantees in criminal proceedings under article 14(3) of
the ICCPR
-
the prohibition on interference with privacy under article 17 of
the ICCPR, and
-
the right to freedom of expression under article 19(2) of the
ICCPR.[70]
Key provisions
The key provisions of the Bill will explicitly allow examiners
to ‘conduct an examination of a person who has been charged with an offence and
to ask that person questions that relate to the subject matter of the charge.’
The provisions balance this with a set of safeguards about the ways in which
such information may be used, with the specific intention of maintaining the
right to a fair trial.
As set out in the Explanatory Memorandum, Part 1 of
Schedule 1 will amend the ACC Act to clarify the coercive powers
of ACC examiners. It will enable an ACC examiner to conduct an examination of a
person who has been charged with an offence and to ask that person questions
that relate to the subject matter of the charge. Part 1 will
specifically enable the ACC and its Australian law enforcement agency partners
to use examination material to obtain derivative evidence against the examinee
and others, and will set out the circumstances in which this material may be
used in criminal and other proceedings against the examinee.
Part 1 of Schedule 1 will also clarify the
safeguards that apply to examinations that are intended to ensure that the
operation of the examinations does not affect the fair trial of the examinee.
These safeguards are intended to:
- clarify
the circumstances in which an ACC examiner must issue a direction to ensure the
confidentiality of evidence given at an examination
- restrict
the circumstances in which examination material may be provided to the persons
prosecuting an examinee and
- ensure
that courts continue to have appropriate powers to ensure that examination
material and material derived from it do not prejudice the examinee’s fair
trial.
This Part will also clarify when ACC examiners may conduct
examinations in the context of confiscation proceedings against the examinee
under the Proceeds of Crime Act 2002 (POC Act) and equivalent state
and territory legislation, as well as the circumstances in which examination
material may be used in such proceedings. These measures implement
recommendations 3 and 4 of the 2012 report of the Parliamentary Joint Committee
on Law Enforcement’s (PJCLE) on its inquiry into Commonwealth unexplained
wealth legislation and arrangements.[71]
These recommendations called for ACC examinations and material to be used as
evidence in support of unexplained wealth proceedings under the POC Act, and
for examinations to take place after a restraining order has been made by a
court.
In particular, item 12 of Schedule 1 will
add proposed subsection 24A(2) which will explicitly allow an examiner
to conduct an examination pre-charge, post-charge, pre-confiscation application
or post-confiscation application. Item 13 will insert proposed
subsections 25A(6A) and (6B) which will specifically authorise questioning
related to the subject matter of the offence with which the examinee has been
charged or to the confiscation proceedings. Together these provisions are
intended to respond to the decision in the X7 case, as discussed above.
Items 14 to 16 will provide for limitations on the
confidentiality and dissemination of examination and derivative material, and
the use of examination material to obtain derivative material. These provisions
are stated to be intended to safeguard, as far as practical, the conduct of a
fair trial. The details of the specific limitations to be introduced by items
14 to 16, and the circumstances to which they would apply, are outlined
in the table reproduced below under ‘Issues.’
Proposed section 25E provides specifically for a
court’s powers to ensure a fair trial. While this section allows the court to
order the disclosure of examination or derivative material, such disclosure
must be in the interests of justice. Furthermore, proposed subsection 25E(4)
states that a trial will not be unfair merely because a person has been an
examinee, regardless of whether the examination occurred before or after the charges
were brought. In addition, proposed subsection 25E(3) affirms that the
new provisions do not restrict a court’s power to make orders to ensure that a
fair trial is not prejudiced by the possession or use of examination or
derivative material by a prosecutor.
Part 2 of Schedule 1 will move the
provisions relating to an examiner’s power to issue a notice to produce documents
or things from Division 2 of Part II of the ACC Act, which is about
examinations, into Division 1A of Part II, which is about the performance of
the ACC’s functions and the exercise of its powers.
This Part will make clear that a notice to produce is a
mechanism for gathering information that is different from an examination. It will
confirm the position, under current subsection 29(2), that the notice to
produce must relate to a special operation or special investigation. It does
not require an examiner to be holding an examination for the purposes of that
operation or investigation.
Schedule 2, structured similarly to Schedule 1,
proposes similar amendments to the LEIC Act to clarify the powers of the
Integrity Commissioner to conduct coercive hearings. These amendments will
enable the Integrity Commissioner to conduct a hearing and question a witness
who has been charged with an offence and to ask that person questions that
relate to the subject matter of the charge. The Schedule will specifically enable
the Integrity Commissioner, ACLEI and other bodies to use hearing material to
obtain derivative evidence against the witness and others, and will set out the
circumstances in which this material may be used in criminal and other
proceedings against the witness.
Schedule 2 will also clarify the safeguards that
apply to hearings. These safeguards are intended to ensure that hearings do not
affect the fair trial of the witness. These safeguards are intended to:
- clarify
the circumstances in which the Integrity Commissioner must issue a direction to
ensure the confidentiality of evidence given at a hearing
- restrict
the circumstances in which hearing material may be provided to the persons
prosecuting a witness, and
- ensure
that courts continue to have appropriate powers to ensure that hearing material
and material derived from it do not prejudice the witness’s fair trial.
This Schedule also clarifies when the Integrity
Commissioner may conduct hearings in the context of confiscation proceedings
against the witness under the POC Act and equivalent state and territory
legislation, as well as the circumstances in which hearing material may be used
in such proceedings.
Schedule 2 also makes a range of amendments to
improve the effectiveness of hearings and make the consequences for breaching
confidentiality provisions in relation to hearings more consistent with similar
Commonwealth legislation.
Issues
The stated intent of the Bill is to clarify the coercive
powers of the ACC and ACLEI in the course of conducting examinations. The key
issues involved are the need to balance this intent with accepted principles
such as the common law rights against self-incrimination and to a fair trial,
as discussed in the Background section of this Digest.
In light of recent court decisions which essentially
abrogated the powers of the agencies in the absence of express legislative
intent, this Bill is aiming to amend the relevant legislation to make that
intent clear as relating to the powers of examination. Furthermore, the clauses
of the Bill which restrict the release and use of the information gained from
examinations are directed to ensuring the integrity of any related criminal
justice process.
The requirement for courts to consider rights when
interpreting legislation is recognised to be important but limited by
legislative intent. Regarding this principle of legality,[72]
Justices Gageler and Keane said in Lee v New South Wales Crime Commission (2013)
that, as well as protecting common law rights, the principle ‘extends to the
protection of fundamental principles and systemic values’.[73]
However, such application or consideration of rights and
principles is only possible where the legislative intent to encroach on the
rights or principles at issue is not clear, or is expressed in general
language. Parliamentary supremacy over the principle of legality is well
established. As Justices Gageler and Keane also noted:
The principle at most can have limited application to the
construction of legislation which has amongst its objects the abrogation or
curtailment of the particular right, freedom or immunity in respect of which
the principle is sought to be invoked.[74]
The current Bill is expressly intended to clearly articulate
the intent to grant powers to the ACC and ACLEI which might otherwise be
questioned according to the principle of legality.
Rights against self-incrimination and
to a fair trial
The right to a fair trial is generally accepted as a
necessary element of Australia’s criminal justice system, although the specific
elements of the concept have not been judicially determined. As the High Court
noted:
There has been no judicial attempt to list exhaustively the
attributes of a fair trial. That is because, in the ordinary course of the
criminal appellate process, an appellate court is generally called upon to
determine, as here, whether something that was done or said in the course of
the trial, or less usually before trial, resulted in the accused being deprived
of a fair trial and led to a miscarriage of justice.[75]
An important aspect of a fair trial is the principle that
the same procedural rights are to be provided to the prosecutor and defendant
unless differences can be justified on objective and reasonable grounds, and do
not result in disadvantage or unfairness to the defendant.[76]
The intent of the Bill is to clarify the coercive powers
of the ACC and ACLEI in the course of conducting examinations, particularly in
light of the above cited recent decisions. The Bill would specifically permit
coercive examinations to override the right against self-incrimination in
instances where an examination of a person who has been charged with an offence
may touch upon matters related to the charge. The Bill would also permit examination
material to be used to obtain derivative evidence which may be used against a
person. The justification for the exclusion of rights is therefore an issue of primary
importance.
As outlined by the court in X7 in the excerpt
above,[77]
situations involving compulsory examinations require the balancing of the genuine
public policy need to acquire certain information, and hence to remove a
person’s right against self-incrimination, with the maintenance of the right to
a fair trial. The examination of matters related to contemporaneous charges and
the use of evidence derived from such examinations may both impinge upon these rights.
The Government states in the Explanatory Memorandum that the
amendments are not intended to prejudice the fairness of a trial, and that the
Bill includes various safeguards to protect this. Specifically, the amendments
are:
... intended to ensure that examinations and the disclosure of
examination and derivative material do not prejudice the fairness of any trial
of the examinee. They achieve this in a number of ways. An examiner will
still be required to issue a direction to ensure the confidentiality of
examination material where its disclosure would, amongst other things,
prejudice the examinee’s fair trial, in circumstances where he or she has been
charged with an offence, or such a charge is imminent. The amendments also
place a range of limitations on the circumstances in which examination and
derivative material may be provided to a person prosecuting the examinee, in
addition to the general secrecy and disclosure provisions which apply to all
ACC information. The limitations that apply to the disclosure of examination
and derivative material depend on the time at which the examination occurred,
and the time at which the material is disclosed, with the determining factor being
whether or not the person has been charged with an offence (or such a charge is
imminent).
These additional limitations are set out in the below table:
|
Material
|
Position on disclosure to
prosecutor
|
|
Pre-charge examination
material disclosed pre-charge
|
Can be disclosed if
non-disclosure direction allows it
|
|
Pre-charge derivative
material disclosed pre-charge
|
No additional limitation on
disclosure
|
|
Pre-charge examination
material disclosed post-charge
|
Can only be disclosed with a
court order
|
|
Pre-charge derivative
material disclosed post-charge
|
No additional limitation on
disclosure
|
|
Post-charge examination
material
|
Can only be disclosed with a
court order
|
|
Post-charge derivative
material
|
Can only be disclosed with a
court order
|
Further, the amendments in Part 1 are intended to make it
clearer that examinations have an important role in ACC special operations and
special investigations, and are not used simply to bolster the prosecution’s
case against an accused, although information derived from information obtained
in an examination may be used to assist in the examinee’s prosecution.[78]
While the safeguards noted above may have the intended
effect and appropriately quarantine examination and derived material from the
prosecution and court, the very act of providing material during an examination
may affect a person’s right to a fair trial by limiting their options in their
own defence, the principle of ‘equality of arms’. As noted by Hayne and Bell JJ
in X7,
Requiring the accused to answer questions about the subject
matter of a pending charge prejudices the accused in his or her defence of the
pending charge (whatever answer is given). Even if the answer cannot be used in
any way at the trial, any admission made in the examination will hinder, even
prevent, the accused from challenging at trial that aspect of the prosecution
case. And what would otherwise be a wholly accusatorial process, in which the
accused may choose to offer no account of events, but simply test the
sufficiency of the prosecution evidence, is radically altered.[79]
Their Honours then accepted the possibility of such an
alteration being made by the legislature:
An alteration of that kind is not made by a statute cast in
general terms. If an alteration of that kind is to be made, it must be made by
express words or necessary intendment.[80]
While the proposed provisions do preserve a court’s power
to make any orders necessary to prevent the prejudicing of a fair trial by the
‘possession or use of examination material or derivative material’,[81]
the Bill provides that a trial is not unfair simply because a person has been
examined.[82]
In this way the Bill addresses the requirement for express words or necessary
intendment, as stated by the court, and will allow for impingement of the right
to a fair trial.
The Australian Law Reform Commission has considered
possible justifications for the exclusion of the right against
self-incrimination, and the consequent impact on trials, noting that:
The High Court has on several occasions held that the
privilege is not immutable and can be abrogated in order to balance competing
rights and the public interest:
‘The legislatures have taken this course when confronted with
the need, based on perceptions of public interest, to elevate that interest over
the interests of the individual in order to enable the true facts to be
ascertained.’
The ALRC further stated that:
This public interest may be enlivened in circumstances where
the information gleaned from a witness or defendant as a result of suspending
the privilege reveals an issue of major public importance that has a
significant impact on the community in general or on a section of the
community. For example, an inquiry or investigation into allegations of major
criminal activity, organised crime or official corruption or other serious
misconduct by a public official in the performance of his or her duties might
justify the abrogation of the privilege. (footnotes omitted)[83]
Retrospectivity
The application of the majority of the functional
provisions in the Bill have been defined to be ‘at or after‘ commencement. This
includes the application of the new provisions to disclosures, acts or
evidence, regardless of whether they result from an examination which was
conducted prior to commencement.[84]
The effect of this is primarily that any use or
restriction on use of material obtained at an examination will be controlled
according to the new provisions, regardless of whether the material was
obtained at an examination prior to commencement. This may have some limited impact
on any cases which involve charges laid prior to the date of commencement and
where a post charge examination had also occurred before commencement. In such
instances an examinee may have believed that the fact of the post charge
examination would have an effect on the proceedings in light of the recent
decisions. This will, however, not be the case after commencement.
Australian courts have accepted that legislative actions
may legitimately have an impact on pending proceedings, as Chief Justice French
and Justices Crennan and Kiefel recently affirmed:
It is well established that Parliament may legislate so as to
affect and alter rights in issue in pending litigation without interfering with
the exercise of judicial power in a way that is inconsistent with the
Constitution.[85]
No retrospective offences would be created by the Bill. The
new provisions that provide offences such as those relating to the disclosure
of material would only apply to a disclosure that occurred at or after
commencement.
Constitutional Validity—Severability
clauses
As noted above, the X7 case discussed and dismissed
many potential constitutional issues surrounding compulsory examination.[86]
Nevertheless, many of the proposed provisions in the Bill include severability
clauses[87]
which, in the event that proposed provisions or aspects were found to be
unlawful, would allow the Act to continue operating as if it were confined to operations
which had not been struck down or as if the invalid provisions had not been
enacted.
The NSW DPP raised concerns that while the Bill goes some
way to returning clarity to the powers of the ACC, the presence of these
severability clauses indicates legal uncertainty in each of the relevant
provisions.[88]
The NSW DPP was also concerned that each of these potentially severable
provisions may remain legally uncertain until tested by the courts, thus
continuing to pose issues for prosecuting agencies.
The amendments proposed in the Bill will clarify the application
of the compulsory examination powers of the ACC and ACLEI. They will provide
the express words and clear intent which recent decisions have indicated are
required to permit persons who have been charged with an offence to be examined
on matters related to the offence.
The proposed amendments will also introduce measures
intended to protect the processes of justice and the right to a fair trial by
limiting the uses to which examination and derived material may be used.
However, the amendments would unavoidably alter the process of a trial by
limiting an examinee’s defence options.
Despite the limitations which would be placed on an
examinee’s rights, the Government considers the proposed amendments to be a
proportionate response to the public policy requirement for combatting serious
and organised crime and law enforcement corruption. Other stakeholder groups have
stated that the rights to a fair trial and against self-incrimination are not
appropriately protected under the proposed changes.
Agency
Legislation
|
Self-incrimination—general
|
Immunities—general
|
Special provisions
|
Self-incrimination under special provisions
|
|
ACC
|
Abrogated by implication (30(2), (4) and (5))
|
Use immunity (with some exceptions) if the person claims
an answer or the production of a document or thing would tend to incriminate
him or her (30(4) and (5))
|
None at present
|
N/A
|
|
ACLEI
|
Abrogated (80 (1) and 96(1))
|
Use immunity (with some exceptions) (80(3) and (4) and
96(3) and (4))
|
None at present
|
N/A
|
New South
Wales Crime Commission
Crime
Commission Act 2012
|
Abrogated (39(1))
|
Use immunity (with some exceptions) if the person objects
on the grounds of self-incrimination (39(2) and (3) and 39A), or if a
declaration is made that everything provided by a witness is taken to have
been provided on objection (39(6))
|
A person facing a ‘current charge’ as defined in
subsection 4(1B) may only be questioned on matters relating to the
subject matter of the offence if leave is granted by the Supreme Court (35A).
The Supreme Court may grant leave (unconditionally or subject to conditions)
if satisfied that any prejudicial effect is outweighed by the public interest
in using its powers to ensure a particular matter is fully investigated
(35A(5) and (6)).
Additional protections are also provided under sections:
21A (directions as to the presence of certain persons at
hearings)
45A (limits on disclosure of evidence)
45C (matters a court must consider if an application if made for a stay of
proceedings
|
Use immunity applies (35A(3)).
Derivative use immunity applies only in relation to the
particular offence that was the subject of the current charge. Information
given by a person subject to a current charge may be used to derive evidence
against the person of a different offence (39A (3) and (4)).
|
Queensland Crime and
Corruption Commission
Crime
and Corruption Act 2001
|
Corruption investigations
Abrogated (188(3) and 192(2))
Crime investigations and intelligence functions
Abrogated (185(2) and 194)
|
Corruption investigations
Use immunity provided (with some exceptions) for answers provided at a
hearing if, before answering, the person objects on the grounds of
self-incrimination (197) or if a declaration is made that everything provided
by a witness is taken to have been provided on objection (197(5))
Crime investigations and intelligence functions
Use immunity (with some exceptions) if the person objects
on the grounds of self-incrimination (194 (2) and 197), or if a declaration
is made that everything provided by a witness is taken to have been provided
on objection (197(5)
|
The Commission may use its powers despite any proceedings
(331)(where a proceeding for a criminal offence is taken to be in or before a
court from the moment a charge is laid (331(4)). It is also explicitly
empowered to require a person to answer a question or produce a document or thing,
relevant to current criminal proceedings (331(4)(b)).
If the proceeding in question is for an indictable offence and is conducted
by or for the state, the Commission must take certain steps if the person’s
right to a fair trial might otherwise be prejudiced, in particular (331(2)):
conducting closed hearings
give a non-publication direction under section 202 and/or
make a non-publication order under subsection 180(3).
|
No specific provisions made
|
Western Australian Corruption and Crime
Commission
Corruption
and Crime Commission Act 2003
|
Abrogated for statements of information required from
public authorities or public officers (94) and answers, documents or things
provided by any person (157–160)
|
Use immunity (with some exceptions) provided for
statements of information required from public authorities or public officers
(94(5) and (6))
Use immunity (with some exceptions) provided for answers given (145)
No provision appears to be made for use immunity for documents and other
things provided under section 95 or 96
|
The Commission may not question a person answering an
organised crime summons about matters relevant to an offence with which the
person ‘stands charged’ (50)
|
N/A
|
NSW Independent
Commission Against Corruption
Independent
Commission Against Corruption Act 1988
|
Abrogated by implication for investigations (26) and
explicitly for compulsory examinations and public inquiries (37(2))
|
Use immunity (with some exceptions) provided where a
person provides information in response to a notice given under section 21 or
22, if the person claims at the time that the statement, document or thing
would tend to incriminate them (26).
Use immunity (with some exceptions) provided for answers, documents and
things provided in response to a summons or at a compulsory hearing or public
inquiry, if the person claims at the time that the statement, document or
thing would tend to incriminate them (37(3) and (4)) or if a declaration is
made that everything provided by a witness is taken to have been provided on
objection (38)
|
None
|
N/A
|
Victorian Independent
Broad-based Anti-corruption Commission
Independent
Broad-based Anti-corruption Commission Act 2011
|
Abrogated (144(1))
|
Use immunity provided (with some exceptions) (144 (2))
|
None
|
N/A
|
South Australian Independent
Commissioner Against Corruption
Independent
Commissioner Against Corruption Act 2012
|
Abrogated by implication (8(2), (4) and (5))
|
Use immunity provided (with some exceptions) (8(4) and (5)
of Schedule 2)
|
The Commission may use its powers in relation to a
particular matter, despite the referral of the matter for prosecution or
investigation or prosecution, institution of proceedings, or the charging of
a person with an offence (43).
In such cases, it must ‘endeavour to avoid, as far as practicable, prejudice
to any person affected by the referral or who is charged with the offence’
(43)
|
No specific provisions made
|
Tasmanian Integrity
Commission
Integrity
Commission Act 2009
|
Retained (92). Claims of privilege, including that against
self-incrimination (see definition in section 4), may lead to withdrawal
of a requirement to answer a question or provide information, a document or
thing. If it is not withdrawn, a notice is issued that a person must either
comply with, or apply to the Supreme Court to determine the claim.
|
N/A
|
A person must not be required to give evidence about a
matter if he or she has been charged with a crime or offence in respect of
that matter (93)
|
N/A
|
NSW Police Integrity
Commission
Police
Integrity Commission Act 1996
|
Abrogated by implication notice to produce powers (28) and
explicitly for answers, documents or things required at a hearing to which a
person has been summonsed (40(1) and (2))
|
Use immunity (with some exceptions) provided where a
person provides information in response to a notice given under section 25 or
26, if the person claims at the time that the statement, document or thing
would tend to incriminate them (28).
Use immunity (with some exceptions) provided for answers, documents and
things provided in response to a summons or at a hearing, if the person
claims at the time that the statement, document or thing would tend to
incriminate them (40)(3) and (4)), or if a declaration is made that
everything provided by a witness is taken to have been provided on objection
(41).
|
None
|
N/A
|
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1].
Australian Crime
Commission Act 2002 (Cth), accessed 11 June 2015.
[2]. Law Enforcement
Integrity Commissioner Act 2006 (Cth), accessed 1 May 2015.
[3]. Public Interest
Disclosure Act 2013 (Cth), accessed 1 May 2015.
[4]. R
v Seller; R v McCarthy [2013]
NSWCCA 42, accessed 1 May 2015.
[5]. X7
v Australian Crime Commission [2013] HCA 29,
accessed 1 May 2015.
[6]. Lee
v The NSW Crime Commission (2013) 302 ALR 363 (‘Lee No. 1’), [2013] HCA 39, accessed 1 May 2015.
[7]. Lee
v The Queen (2014) 308 ALR 252 (‘Lee No. 2’), [2014] HCA 20, accessed
1 May 2015.
[8]. Australian Crime Commission
Act 2002 (Cth), section 24A.
[9]. Australian Crime Commission
Act 2002 (Cth), section 25A(2)-(8).
[10]. Evidence Act 1995
(Cth) section 4; Australian Crime Commission v Stoddart (2011) 244 CLR
54, 621; [2011]
HCA 47 [178] (Crennan, Kiefel and Bell JJ); both accessed 4 May 2015.
[11]. Australian Crime
Commission Act 2002 (Cth), section 34.
[12]. Ibid., section 36.
[13]. C Incorporated v
Australian Crime Commission [2010] FCAFC 4
[96]; GG v Australian Crime Commission [2010] FCAFC
15 [28], accessed 17 June 2015.
[14]. Australian Crime
Commission Act 2002 (Cth), section 59AD.
[15]. Ibid., subsections
28(1)-(3).
[16]. See also in context of
discovery applications in the Federal Court: Hogan v Australian Crime
Commission (2010) 240 CLR 651, 658, 666-667; [2010] HCA 21
[3], [40]-[44], accessed 17 June 2015.
[17]. Australian Crime
Commission Act 2002 (Cth) section 30(1)-(3), 30(6)-(8); Australian Crime
Commission v Marrapodi [2012] WASCA
103,
[39]-[41] (McLure P), [100]-[104] (Allanson J), accessed 17 June 2015.
[18]. Australian Crime
Commission v Marrapodi [2012] WASCA
103, [46]-[48] (McLure P), [110], [127]-[143] (Allanson J), accessed 17
June 2015.
[19]. Australian Crime
Commission Act 2002 (Cth), section 34A-34E.
[20]. Ibid., section 35.
[21]. Ibid., section 35A.
[22]. Ibid.,
subsections 30(2) and (4).
[23]. Ibid.,
subsection 30(5).
[24]. R v Seller; R v
McCarthy [2013]
NSWCCA 42, [102] (Bathurst CJ), [119] (McClellan CJ at CL),
[121]-[123] (Rothman J), accessed 17 June 2015.
[25]. Australian Crime
Commission v OK [2010] FCAFC
61 [7]-[9], [56], [63]-[64] (Spender J, dissenting), accessed
17 June 2015.
[26]. Australian Crime
Commission v OK [2010] FCAFC
61 [103]-[114]; Bartlett v The Queen [2012] WASC 503
[125]-[131]; R v CB; MP v the Queen [2011] NSWCCA 264 [100], [103],
[110]-[111] (McClellan CJ at CL), accessed 17 June 2015.
[27]. Ibid., [75],
[103]-[105] (Emmett and Jacobson JJ); Bartlett v The Queen [2012] WASC 503
[86], accessed 17 June 2015.
[28]. R v Seller; R v
McCarthy [2013]
NSWCCA 42, [102]-[106], [110]-[117] (Bathurst CJ), [119] (McClellan CJ at
CL). Compare Rothman J’s remarks at [134]-[135], accessed 17June 2015.
[29]. Ibid., [102]-[106]
(Bathurst CJ), [119] (McClellan CJ at CL). Compare Rothman J’s remarks at
[134]-[135].
[30]. Australian Crime
Commission Act 2002 (Cth), section 59AC; Explanatory Memorandum, Bartlett
v R [2012]
WASC 503 [96]-[106].
[31]. Australian Crime
Commission Act 2002, section 25A(9)-(11), 25A(14).
[32]. Ibid., section
25A(9)-(11).
[33]. Ibid., section
25A(12)-(13).
[34]. R v Munro [2013] ACTSC
14 [15]-[16], accessed 17 June 2015.
[35]. R
v Seller; R v McCarthy [2013]
NSWCCA 42.
[36]. X7
v Australian Crime Commission [2013] HCA 29.
[37]. Lee
v The NSW Crime Commission (2013) 302 ALR 363 (‘Lee No. 1’) [2013] HCA 39.
[38]. Lee
v The Queen (2014) 308 ALR 252 (‘Lee No. 2’) [2014] HCA 20.
[39]. Explanatory
Memorandum, Law
Enforcement Legislation Amendment (Powers) Bill 2015, pages 28, 29, accessed
1 May 2015.
[40]. X7
v Australian Crime Commission [2013] HCA 29,
[158] per Kiefel J.
[41]. Ibid.,
[21] (French CJ and Crennan J).
[42]. Ibid., [2013]
[69]-[71], [146]-[156] (Hayne and Bell JJ), [157]-[162] (Kiefel J).
[43]. Ibid., [66] (French CJ
and Crennan J).
[44]. Ibid.,
[59]-[60].
[45]. Ibid,,
[63]-[65].
[46]. Ibid., [88]-[94]
(Hayne and Bell JJ).
[47]. Ibid., [95] (Hayne and
Bell JJ).
[48]. Ibid.,
[107]-[108].
[49]. Ibid., [118] (Hayne
and Bell JJ).
[50]. Ibid., [124]-[125]
(Hayne and Bell JJ).
[51]. Ibid., [52]-[60]
(French CJ and Crennan J).
[52]. Ibid., [29]-[30]
(French CJ and Crennan J).
[53]. Crime
Commission Act 2012 (NSW), sections 39 and 39A; Crime
and Corruption Act 2001 (Qld), sections 185, 188,
192, 194, 197; Corruption
and Crime Commission Act 2003 (WA), sections 94, 145,
157–160; Independent
Commission Against Corruption Act 1988 (NSW), sections 26, 37, 38;
Independent
Broad-based Anti-corruption Commission Act 2011 (Vic),
section 144; Independent
Commissioner Against Corruption Act 2012 (SA), clause 8 of
Schedule 2; Integrity
Commission Act 2009 (Tas), section 92; Police
Integrity Commission Act 1996 (NSW), sections 28, 40, 41;
all accessed 19 June 2015.
[54]. Crime
Commission Act 2012 (NSW), section 35A; Crime and
Corruption Act 2001 (Qld), section 331; Corruption and
Crime Commission Act 2003 (WA), section 50; Independent
Commissioner Against Corruption Act 2012 (SA), section 43; Integrity
Commission Act 2009 (Tas), section 93.
[55]. Senate
Legal and Constitutional Affairs Legislation Committee, Law
Enforcement Legislation Amendment (Powers) Bill 2015 [Provisions], The
Senate, Canberra, June 2015, accessed 18 June 2015.
[56]. Ibid.,
p. 19.
[57]. Ibid.,
pp. 21–25.
[58]. Law
Council of Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 4
June 2015, accessed 17 June 2015.
[59]. Parliamentary
Joint Committee on the Australian Crime Commission (PJC-ACC), Review
of the Australian Crime Commission Act 2002, The Senate, Canberra,
November 2005, accessed 19 June 2015.
[60]. Ibid.,
p. 26.
[61]. Australian
Government, Government
response to the Parliamentary Joint Committee on the Australian Crime
Commission report: review of the Australian Crime Commission Act 2002,
recommendation 1, tabled 13 May 2010, accessed
19 June 2015.
[62]. Senate
Legal and Constitutional Affairs Legislation Committee, op. cit., p. 25.
[63]. Australian
Human Rights Commission, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 5
June 2015, p. 12, accessed 17 June 2015.
[64]. Ibid.
[65]. Law
Council of Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Legislation Amendment (Powers) Bill 2015, op.
cit., p. 12.
[66]. Australian
Law Reform Commission (ALRC), ‘Freedoms inquiry:
submissions’, ALRC website, accessed 19 June
2015. See, for example, submission 49; Institute of Public Affairs, and submission
75; Law Council of Australia.
[67]. Ibid.,
see submission 57; Office of the Australian Information Commissioner, and submission
74; ASIC.
[68]. The
Statement of Compatibility with Human Rights can be found at pages 6–26 of the Explanatory
Memorandum to the Bill.
[69]. Ibid.,
p. 26.
[70]. Ibid.,
p. 9.
[71]. Parliamentary Joint Committee on Law Enforcement (PJCLE), Inquiry into Commonwealth unexplained wealth legislation and
arrangements, March 2012, pp. 6–9, accessed 19 June 2015.
[72]. For
a more complete discussion of the principle of legality, common law rights and
encroachments on them, see Australian Law Reform Commission, Traditional
rights and freedoms—encroachments by Commonwealth laws, Issues paper no. 46,
December 2014, accessed 7 May 2015.
[73]. Lee
v New South Wales Crime Commission (2013) 302 ALR 363, [2013] HCA 39,
[313], accessed 22 June 2015.
[74]. Lee
v New South Wales Crime Commission (2013) 302 ALR 363, [2013] HCA 39,
[314].
[75]. Dietrich v R (1992) [1992]
HCA 57, 177 CLR 292 at 300 per Mason CJ and McHugh J; 109 ALR
385; 67 ALJR 176.
[76]. Australian
Human Rights Commission, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Legislation Amendment (Powers) Bill 2015, op.
cit., p. 7.
[77]. X7
v Australian Crime Commission [2013] HCA 29,
[29]-[30] (French CJ and Crennan J).
[78]. Explanatory
Memorandum, op. cit., pp. 29–30.
[79]. X7,
op. cit., [71].
[80]. Ibid.,
[71].
[81]. See
Schedule 1, clause 16, proposed section 25E of the ACC
Act and Schedule 2, clause 29, proposed section 96AD
of the LEIC Act.
[82]. Ibid.
[83]. Australian
Law Reform Commission, op. cit., p. 78, citing Environmental Protection Authority v Caltex Refining Co
Pty Ltd (1993) 178 CLR 477 [1993]
HCA 74, 503 (Mason CJ and Toohey J). See also, Sorby v The
Commonwealth (1983) 152 CLR 281 [1983]
HCA 10, 298 (Gibbs CJ), accessed 19 June 2015.
[84]. See,
for example, proposed clauses 37, 64 and 38 of the Bill.
[85]. Australian
Education Union v General Manager of Fair Work Australia [2012] HCA 19,
[49], quoting Australian Building Construction Employees' and Builders
Labourers' Federation v The Commonwealth [1986] HCA 47,
accessed 22 May 2015.
[86]. X7
v Australian Crime Commission [2013] HCA 29,
59]-[65].
[87]. See
for example proposed sections 24A(3), 25A(6), 25B(4), 25C(3), 25D(2),
25E(5), 25F(5), 25H(5) and 28(9).
[88]. New
South Wales Office of the Director of Public Prosecutions, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Legislation Amendment (Powers) Bill 2015, 29 May 2015,
accessed 17 June 2015.
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