Bills: Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 - Second Reading

5 December 2019

Senator Patrick: This is a line in the sand moment for the Senate. Will it continue to allow the parliament to erode rights and freedoms by way of stealth? Will it allow law enforcement agencies to exercise coercive powers almost unchecked by the courts? It is concerning that the parliament appears to be comfortable with rushing the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 through without proper scrutiny, even though it has the potential to impact on the rights and freedoms of all Australians. Surely after the outcry about media freedom following the AFP raids on journalists the Senate is not going to do this and rush this bill through without proper scrutiny? Any Australian, even those not suspected of a crime, could be impacted by this bill.

The Minister for Home Affairs has described this bill as 'simply making technical amendments' to the Australian Crime Commission Act 2002. Well, I'm sorry, Mr Dutton; these reforms represent a significant broadening of the circumstances in which coercive power may be exercised and should not be dismissed as merely 'technical'.

Madam Acting Deputy President Stoker, I know you are a barrister at law and I know you will understand some of the arguments I am going to present—and they are serious arguments. They are serious arguments which, as an officer of the court, would no doubt concern you. The coercive powers that may be authorised by the board of ACIC are significant, and demand proper scrutiny and oversight. These powers include the ability to compel the production of documents and the capacity to compulsorily examine a person without that person being able to assert privilege against self-incrimination. Unlike the obtaining of warrants, there is no requirement in this act of the citizen being reasonably suspected of any offence. Any person that is thought to have information relating to the ACIC's special investigations can be the subject of the exercise of those coercive powers. To be clear, these powers are not only to be reserved for suspected criminals but may well be used against others, such as journalists and others in the community, whose actions are deemed by the authorities to be contrary to the public interest.

These are fundamental rights that are embedded in our legal system, and, while there may be circumstances in which circumvention is justified, this abrogation must only take place through a rigorous and restrained process with adequate safeguards. The trigger for this bill is a forthcoming case in the High Court of Australia, named CXXXVIII v the Commonwealth of Australia & Ors, where the validity of a determination by the ACIC Board will be challenged on the ground that it did not conform with the safeguards currently present in section 7C of the Australian Crime Commission Act. What is clear from the pending court case is that there is a real concern that the ACIC Board has been making determinations authorising special criminal investigations which may be held invalid. This obviously has the potential to impact the validity of past and current ACIC investigations and operations. It may also mean that there have been convictions that have been secured in part or in full on the basis of invalid actions by the ACIC. We should not be making laws based on a single case, particularly when the case has not even been heard yet.

Currently, for the ACIC Board to make a determination for special operations or special investigations, traditional law enforcement methods must be unlikely to be or have been effective. This bill seeks to remove this test and replaces it with a public interest test, so that the only condition on the ACIC Board issuing a determination is that it considers that it is in the public interest to do so. 'Public interest' is not defined, so it has the potential to be incredibly broad. To reiterate, all that would be required is that the board must consider, on the basis of the collective experience of the members voting at the meeting when a determination is made, that it is in the public interest that a special operation or special investigation occur. This would significantly expand the circumstances in which the ACIC may potentially exercise its coercive powers, removing important safeguards that exist for good reason under the current scheme.

This change is effected, in the main, in clauses 15 and 16 of the bill by the repeal and replacement of section 7C of the act. It is important to recognise that the safeguards that exist in the current act were a compromise worked through following the parliamentary inquiry which replaced the national crime commission with the Australian Crime Commission. The explanatory memorandum to the amendments creating the ACC Act described the significance of these safeguards—so these safeguards were considered significant. There were two significant aspects to the safeguards. First, it was necessary that consideration be given to whether ordinary police methods would be effective before a special determination was made. Second, and perhaps more significantly, it was intended there would be a document which would provide some means of ascertaining the limits of the power of the ACC.

The bill now proposes that the board form its own view that the making of the determination is in the public interest. That concept cannot provide any meaningful guidance as to the limits of the exercise of the power. It is obvious that expanding the capacity of the board to create a special investigation also expands the ability to use coercive powers. Moreover, the less transparent the process the harder it is for any citizen to ascertain the limits of those powers. The only justification that can be identified for this change is convenience and expediency, and that's what this bill is about today. The explanatory memorandum does not explain why the existing safeguards are no longer necessary and why they should be abolished. We are left without reason or understanding.

It is also noted that the bill seeks to retroactively create ACC investigations that never existed. This is effected in clause 56. No justification is identified for why it is appropriate that an investigation be deemed to exist even if it did not in fact. Given the proposed amendments, it is entirely unexplained as to why there might be other cases where this has occurred. The ACC ought to be required to explain the need to validate such conduct in relation to cases which it apparently has in its mind.

I also note that the bill purports to retroactively validate the form of determination made by the ACC, whether or not they complied with the safeguards fixed by parliament in 2002 and without regard to the reasons for the invalidity of the determination itself. This is effected in clause 55. Again, no justification is identified for why it is appropriate that any departure of the ACIC from the terms of its own act should now be enabled by retroactive validation. If the ACIC had been doing the wrong thing and had not interpreted the law correctly, then the parliament needs to carefully consider and scrutinise why this has occurred rather than simply validating it retrospectively. Centre Alliance will be moving an amendment today to remove the retrospective acts in this bill.

Finally, I'm aware of some preliminary concerns regarding the constitutionality of these measures—in particular, the ability for the parliament to enact a power that is so vague and broad in its exercise that it would be difficult for the court to exercise its supervisory powers. That's important, constitutionally. In this country, the courts exercise a supervisory power over the executive. And because the public interest test is so vague and made by a board, this may in fact be an unconstitutional bill.

In conclusion, the bill represents a substantial dilution of what it is necessary for the board of the ACIC to do in order to enable the exercise of coercive power by law enforcement. These proposed amendments are to a scheme that already represents a very substantial incursion into ordinary liberties, and we must be sure to give careful scrutiny and attention to attempts to amend this framework. Parliament should be the last line of defence against overreach by government in the form of legislation that seeks to take away rights and freedoms that have been part of our common law traditions in Australia. Parliament should not form part of a change to erode rights and freedoms of Australians—the very same Australians who elect us to serve them in this place. So members of parliament should not be bullied, should not be rushed. They should not be voting for such a bill without full visibility and understanding as to what effect it has. The tragedy of all of this is that this bill has come to the Senate today, and we are not seeing any scrutiny by a committee of the parliament on a bill that involves the erosion of rights and freedoms and permits the exercise of coercive powers without clear rules and guidelines as to when and how those powers are to be exercised. That should cause great concern amongst all of us.

Centre Alliance will be moving two other amendments to this bill. One of them will be to seek a review of the bill, sensibly—particularly in circumstances where we have seen this bill arrive and it is being voted on without any parliamentary scrutiny in respect of committees and will pass into law, no doubt, because the Labor Party will acquiesce to the government's request, even in these circumstances where Mr Albanese made it very clear there was going to be no more ticking and flicking. People stood up and talked about media raids and their disgust at what had happened. The Labor Party stood up and said that they were not going to let this sort of thing happen. Yet today this bill will likely pass through, giving incredibly coercive powers—which are necessary in some circumstances and are currently controlled by the current act, albeit it appears the act hasn't been complied with. All those safeguards are going to be cast aside today, and that is very disturbing. It's disappointing of the parliament to do so.

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