Most Read Contributor in Australia, September 2016
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
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
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
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.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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This increase has financial implications for companies and individuals found guilty under a wide range of Federal laws.
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