A Bill that seeks to make high-level – and controversial – changes to Australia's law enforcement has been introduced into Federal Parliament.
Under the proposed changes, fundamental rights affecting the right to a fair trial – including the right to silence, the privilege against self-incrimination and the right to choose one's defence at trial – would be affected.
The changes are contained in the Law Enforcement Legislation Amendment (Powers) Bill 2015. If passed, they will enable Australian Crime Commission (ACC) examiners to conduct examinations of persons after they have been charged with a criminal offence and ask those persons questions relating to the subject matter of the charge.
The reforms will also allow the ACC and partner agencies to use examination material to obtain derivative evidence against the examinee and others, and potentially disclose examination material to a prosecutor of the examinee who will – subject to the rules of evidence and procedure – be able to use it against him or her.
Justification of the proposed amendments
The Explanatory Memorandum to the Bill claims the proposed measures are justified on the basis that they are necessary to ensure the ACC has 'appropriate powers to understand, disrupt and prevent both serious and organised criminal activity'.
The Explanatory Memorandum also states the measures will enable the ACC to better give effect to its statutory mandate to collect, analyse and disseminate intelligence about, and to undertake intelligence operations and investigations into, serious and organised crime – crimes that traditional law enforcement measures aren't always as effective in tackling.
However, while the Explanatory Memorandum concludes that it is appropriate that self-incriminatory examination material should not be admissible against examinees, it in the same breath concludes that it is reasonable to use this material to further investigate the person's activities or to find additional evidence that can be used to prosecute the examinee.
Safeguards under the Bill
It is claimed that examiners will not be able to exercise the ACC Act powers for the 'sole' purpose of strengthening a prosecution against an examinee by virtue of the fact that examiners may only conduct examinations in support of a special operation or investigation and only ask questions relating to such operations or investigations.
While it is claimed that this and the Bill's other safeguards will prevent its provisions impacting upon the fair trial of the examinee, these safeguards may prove to be vastly inadequate.
However, the question must be asked whether the objectives set for the Bill could be achieved without material obtained during the course of an ACC examination being usable against persons charged with criminal offences in subsequent proceedings.
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