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Traditional common law rights must be taken seriously

Speeches in Parliament
Penny Wright 22 Jun 2015

Senator WRIGHT (South Australia) (11:39):  The Australian Greens do not support the enactment of the Law Enforcement Legislation Amendment (Powers) Bill 2015 as currently drafted. The bill seeks to amend the Australian Crime Commission Act 2002 and the Law Enforcement Integrity Commissioner Act 2006 to enhance the powers of Australian Crime Commission examiners to conduct examinations, and the Law Enforcement Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity, to conduct hearings.

The conduct of hearings by the Australian Crime Commission, the ACC, and the Law Enforcement Integrity Commissioner has previously raised strong human rights and rule of law concerns and has been subject to consideration by the Senate Legal and Constitutional Affairs Committee and other parliamentary committees. These are non-judicial administrative bodies which are invested with exceptional powers—powers to compel a person, under threat of criminal sanctions, to answer questions that could have a material impact on the person's right to a fair trial if he or she is already, or may be, charged with a criminal offence. This can have the effect of limiting the person's right not to incriminate himself or herself.

The changes proposed in this bill seek to expand the powers of these bodies to conduct coercive hearings that they must attend, and to deny people attending those hearings the right to silence, even in circumstances where the person has been charged with a criminal offence and will face a judicial process in the future. In doing this the bill significantly limits a person's right to a fair trial, particularly by affecting the equality of arms principle and the protection against self-incrimination.

As the Law Council of Australia has summarised, the bill authorises an Australian Crime Commissioner examiner to conduct an examination in many circumstances—pre-charge, post-charge, pre-confiscation application and post-confiscation application—and to compel answers to questions relating to an ACC special operation or special investigation into serious and organised criminal activity. Further, it authorises the Integrity Commissioner to conduct a hearing pre-charge, post-charge, pre-confiscation application or post-confiscation application, and to compel answers to questions relating to an investigation into law enforcement corruption.

In such an examination or hearing a person cannot refuse to answer a question or produce a document or thing on the basis that it might incriminate them or expose them to a penalty. The changes also seek to respond to a number of judicial findings, including findings in the High Court. These findings have made it clear that the compulsory examination of a person who has been charged with an offence about the subject matter of the pending charge does constitute a fundamental alteration to the process of criminal justice in Australia, given the accusatorial nature of criminal justice.

These High Court cases have brought the validity of post-charge investigations into question. Rather than heed the concerns of the High Court in this regard, this bill seeks to clarify with clear statutory language that the parliament intends to alter the process of criminal justice in Australia in this fundamental way. These are very serious issues. They have given rise to concerns by a number of submitters that the changes proposed in the bill may be open to constitutional challenge. Indeed, the bill appears to have been drafted with this possibility firmly in mind. There are echoes of the citizenship debate in this very bill.

Let me be clear. The Australian Greens take seriously the need to address, disrupt and prevent serious and organised crime in Australia. The Australian Greens acknowledge that the coercive examination powers of the ACC and the Law Enforcement Integrity Commissioner are not designed to determine a person's guilt or innocence, but rather to disrupt and prevent serious and organised crime and to prevent suspects from disposing of valuable information about current criminal activities, operations and practices of others that may otherwise be lost.

The information provided by the ACC and the Law Enforcement Integrity Commissioner suggests that the X7 case and other judicial findings have had a significant negative impact on the operations of the ACC and the Australian Commission for Law Enforcement Integrity. The Australian Greens agree that this is relevant and important information to consider. However, the Australian Greens also take seriously the traditional common law rights that are integral to ensuring that a person receives a fair trial, including the privilege against self-incrimination and the right to silence.

These principles are entrenched in both common law and international human rights law—and are expertly outlined in submissions by the Australian Human Rights Commission to the Legal and Constitutional Affairs Legislation Committee inquiry into this legislation. The right to a fair trial is also protected by the constitutional principle of legality whereby 'clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend' this fundamental right.
Ensuring that a defendant is able to present his or her defence in the manner that he or she chooses is an important component of the concept of equality of arms and is a principle that has defined our criminal justice system for decades.

The changes in this bill risk providing the prosecution with information that can be used against a defendant when he or she is facing serious criminal charges. This is because derivative use immunity is not provided for in the bill. The practical consequences of this are that material obtained as a result of an ACC examination or a Law Enforcement Integrity Commissioner hearing can be used to obtain other evidence that can later be used in court against the person. In other words, the prosecution is able to gain an unfair advantage inconsistent with the longstanding 'equality of arms' principle.

Both the Law Council of Australia and the Australian Human Rights Commission have raised serious concerns with key features of the bill. These issues relate to whether the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity should 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; and whether the ACC and Australian Commission for Law Enforcement Integrity should be allowed to disclose information to a prosecutor which has been received from post-charge examinations and hearings.

In weighing up the need to protect the right of an examinee or witness to a fair trial and the need to ensure that the ACC and Australian Commission for Law Enforcement Integrity are not adversely hindered in the performance of their respective roles the Australian Greens are not confident that a fair and appropriate balance has been struck in this bill as currently drafted.

As the Law Council of Australia explains, despite the existence of some safeguards, there is a real risk that the administration of justice will be interfered with by coercively requiring a person to answer questions designed to establish that he or she is guilty of the offence with which he or she is charged and then providing that information to a prosecutor. This risk also means that there is the potential for certain provisions in the bill to be beyond the legislative power of the Commonwealth— that is, unconstitutional. As noted by a number of submitters, including no less than the New South Wales Office of the Director of Public Prosecutions, the inclusion of the severability clauses implies 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. This leads to an unsatisfactory level of uncertainty about the state of the law in an area that may have very serious implications for the investigation, disruption and prosecution of serious and organised crime and for the fair trial rights of those who have been charged with such activity.

The bill does not include any safeguards to limit the proposed power to conduct post-charge examinations and hearings. This means that an affected person would have limited recourse to the courts in circumstances where a post-charge investigation unduly interferes with their right to a fair trial. This is particularly significant given the nature of the proposed changes in the bill which will significantly expand the circumstances in which such examinations and hearings can be conducted. These changes effectively mean that where a defendant has been charged or is about to be charged for any offence, including a low-level crime, they can be examined about this and other matters.

The bill allows the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity to disclose to a prosecutor information obtained through a post-charge examination or hearing. While these disclosure powers come with some safeguards, such as the requirement that a court order must precede a disclosure, they are likely to be of limited practical effect. As the Law Council of Australia notes, this is because the court will be asked to make an order authorising disclosure before having the opportunity to hear how such an order may impact on the conduct of the defence case.

In light of the above concerns, the Australian Greens recommend that the bill not be passed in its current form. The Australian Greens also support recommendations made by the Law Council of Australia to the Legal and Constitutional Affairs Legislation Committee inquiry into this legislation that the government should undertake a comprehensive review of the Australian Crime Commission Act which considers whether the act provides an effective and appropriate framework for the investigation of serious and organised crime and adequate protection of fundamental common law rights such as the right to a fair trial; and clarify to the parliament that this bill in its entirety is within the power of the Commonwealth Parliament to enact. For these reasons the Australian Greens do not support this bill.

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