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Chapter 3 - Powers
Introduction
3.1
As outlined in Chapter 1, the Australian Crime
Commission is the descendent of Royal Commissions of the late 1970's and early
1980's and the later National Crime Authority. Historically, Royal Commissions
have possessed powers which are not ordinarily available to other bodies, and
especially not to police. While the ACC is not a Royal Commission, its extended
investigative and intelligence role has its genesis in these Royal Commissions.
3.2
This chapter gives a short overview of the
investigative powers available to the ACC, and then examines how these powers
have been applied in practice.
What are the powers available to the ACC?
3.3
At the core of the ACC are the coercive powers: the
capacity to compel the attendance at Examinations, to produce documents and to
answer questions.
3.4
In his second reading speech on the ACC Establishment
Bill 2002 the then Chair of the Committee, the Hon Bruce Baird noted that among
the main areas of concern to the committee in its inquiry into the bill were
the use of coercive powers, and the justification for their use.[31] These powers allow the issue of
summonses to attend and notices to produce documents to an ACC hearing, and the
Committee received a broad range of evidence in relation to them in this Inquiry.
Their use remains a focus for the Committee, as an oversight body for the ACC.
3.5
The coercive powers stand outside the normal methods of
investigation and intelligence gathering and their use is circumscribed through
the authorisation process of the Board. The Board will determine that a matter
is a special operation or a special investigation which allows the coercive
powers to be used.
3.6
Section 7C(2) of the ACC Act sets out the requirements
to be observed by the Board when determining the case for a special operation.[32] Section 7C(3) sets out the requirements
for a special investigation.[33] The Act
specifies that the determination must be in writing and include details of the
allegations of criminal activity and the purpose of the investigation or operation.
3.7
The making of such a determination by the Board then
allows an eligible person within the ACC to apply for search warrants –
including applications by telephone (sections 22 & 23), or an ACC examiner
to:
-
apply to the Federal Court for the surrender of
a passport (section 24);
-
conduct examinations, (section 25A);
-
issue a summons to attend an examination (section
28);
-
issue a notice to produce documents (section
29);
-
apply to the Federal Court for a warrant where a
witness fails to surrender a passport, produce documents or attend an
examination (section 31).
3.8
The ACC also has authority under section 21 to gather
relevant information from other sources – in particular, databases across the
Commonwealth and state public sectors, and the private sector. Section 59 of
the ACC Act includes broad powers to obtain and disseminate relevant
information obtained in the course of ACC investigations.
3.9
In addition to the powers described above, the ACC has a
range of investigative powers common to law enforcement agencies.
3.10
The ACC can apply for a warrant to use surveillance
devices as described in the Surveillance
Devices Act 2004. Surveillance devices are described in section 6 of that
Act as 'a data surveillance device, a listening device, an optical surveillance
device or a tracking device', or a combination of any of these. The power to
seek surveillance device warrants is not dependent upon a matter being a
special operation or a special investigation. The Ombudsman inspects the
surveillance device records to determine compliance with the Act and reports to
the Minister every six months.
3.11
The Telecommunications
Interception Act 1979 authorises the ACC to apply for telephone interception
warrants. The Act also requires detailed records of the warrant and its
associated documentation to be retained by the ACC. Under Part 8 of the Act the
Ombudsman may inspect these records and report the findings to the relevant
Minister.
3.12
Part 1AB of the Crimes
Act 1914 authorises the ACC to take part in controlled operations. Under
subsection 15G(1) law enforcement officers, and other authorised persons who
commit a Commonwealth or state offence in the course of an authorised
controlled operation are exempted from both civil and criminal liability. The
CEO of the ACC is required to report to the Minister on requests to authorise
controlled operations and on the action taken in respect of authorised
controlled operations.
3.13
The ACC’s conduct of controlled operations is also
subject to supervision by the Commonwealth Ombudsman.[34]
3.14
In addition to these statute-based powers, the ACC has
available those powers which are exercised by secondees from the AFP and other
agencies. The AFP submission notes:
The ACC relies heavily upon its seconded workforce from the AFP
and other agencies as it does not have the ability to appoint investigators
with police powers in its own right under the ACC Act. Sworn AFP secondees to
the ACC are able to use their police powers when investigating criminal
activity involving Commonwealth offences, giving the ACC an investigative
capability otherwise unavailable to it.[35]
Powers
under state and territory legislation
3.15
Each state and territory has enacted complementary
legislation to the ACC Act. With the exception of NSW, and allowing for
individual State drafting conventions, the state and territory ACC legislation
is consistent in structure and content, and incorporates the relevant parts of
the Commonwealth legislation, placing them in the state act. The NSW
legislation applies the ACC Act and Regulations to NSW, and includes some
specific provisions allowing particular functions and arrangements to apply in
NSW.
3.16
The state and territory legislation was necessary to
enable the ACC and the states to work co-operatively, and to ensure there were
no gaps in the constitutional powers available to Commonwealth and State law
enforcement agencies. The legislative arrangements underpin the State
representation on the Board, and on the Intergovernmental Committee (IGC).
Challenges
to ACC powers
3.17
Since the commencement of the ACC there have been a
series of Federal Court challenges to the ACC's powers. The principal bases for
these challenges have included:
-
the abrogation of the privilege against self
incrimination for Commonwealth, state and foreign offences;
-
the abrogation of legal professional privilege;
-
whether the ACC can summons a person likely to
be charged with a criminal offence, and whether the power to conduct an
investigation is extinguished when the criminal proceeding commences;
-
whether a Board determination was valid;
-
whether the amendment of a Board determination
was valid;
-
whether the ACC has power to disclose
information obtained under its coercive powers to the Australian Taxation
Office;
-
whether there is a privilege against spousal
incrimination and if so, whether is applies to de facto relationships;
-
whether the definition of 'federally relevant'
in section 4A of the ACC Act is supported by a federal head of power;
-
compliance with the requirements for the issues
of summonses under subsection 28(1); and
-
the suppression of names of parties.
3.18
The Committee also notes that the recent decision in AA Pty Ltd and Mr BB v Australian Crime
Commission[36] is under appeal. The decision centred around the power of
the Australian Crime Commission to disseminate information which it obtained
through use of its compulsory powers of investigation. In this case the issue
was whether the information could be given to the ATO and whether for the
purposes of dissemination, the ATO could be construed as a 'law enforcement
body' – the Court said it could not. This has some significance for a number of
matters involving the ATO and the ACC,[37]
and will be viewed with interest by the Committee. (See also Chapter 8
'Legislative Change').
Determinations and the availability of coercive
powers
3.19
As noted above, the ACC is set apart from other law
enforcement agencies by the availability of the coercive powers used by
Examiners.
3.20
Mr Milroy
explained that the Commission uses its coercive powers in a broad based way
within a special intelligence operation or a special investigation, they are a
part of the ACC’s capability to gather information, intelligence and evidence:
Where we are profiling something – whether
it is a case or a particular area of crime that we want to better understand – and
we want to research that particular area or profile a particular individual’s
involvement, we would use the coercive powers tactically as a method of
gathering information and more knowledge about the subject matter.[38]
3.21
In evidence Mr John
Hannaford, ACC Examiner explained to the
Committee that the coercive powers are exercised only after deliberation within
the ACC. Submissions are then made to the examiners regarding use of the
powers, and Mr Hannaford noted that an Examiner's authorisation is not
automatic, with instances when those submissions were rejected by the Examiner,
and the powers were not used.[39]
The
'leakage' of the coercive powers
3.22
A long-time concern of the Committee has been to ensure
that the special coercive powers are limited in their availability, and do not become
a routine element of ordinary police investigation. This concern is driven by
the substantial erosion of the law's traditional protection of the privilege
against self incrimination and the associated right to silence inherent in the
coercive powers. This concern underpinned the traditional refusal by
parliaments to grant coercive powers to police.
3.23
Thus, in his second reading speech introducing the ACC
Establishment Bill 2002, the then Attorney General the Hon Daryl Williams QC
said:
The government agrees that it is not appropriate that coercive
powers be given to police and therefore agrees with the AFP Commissioner's
views. There is no inconsistency with this position in the proposal before the
House for the ACC. There is a clear distinction between the authorisation of
the use of coercive powers and the exercise of those powers.[40]
3.24
Similarly, Mr Mick
Keelty, the AFP Commissioner, also indicated
at a previous hearing that he considered the exercise of such powers by police
inappropriate.[41]
3.25
In its report on the establishment of the ACC, the
Committee distinguished between the authorisation of the use of the coercive
powers – by the Board – and their actual use, which is limited to the
examiners. This limitation gave the Committee confidence that the coercive
powers would be exercised at arms length from the police. However evidence from
the current hearings again raised concerns about the 'leakage' of the ACC's
powers into ordinary police operations.
3.26
In Melbourne,
Mr Peter Faris
QC observed:
I have seen cases where, as far as I can judge, the police had
been investigating or having problems. ...The Crime Commission takes it over for
a short period of time, investigates it, gets more evidence and hands it back.
It has this sort of on request role, which I think is probably inappropriate
given all the circumstances and I think it happens quite a lot.[42]
3.27
Mr O'Gorman
made a similar observation about the Queensland Police Service which:
is increasingly engaging in joint
operations with the Australian Crime Commission which has the end effect – I
say query intended – of getting around the lack of Queensland based telephone tapping powers. ... the position the Queensland
government has held for some time ... is that, until such time as the federal
government is prepared to address the Queensland government’s request for a
Public Interest Monitor concept to oversee telephone tapping powers, the
Queensland government is not prepared to enter into a discussion with the
federal government to have telephone tapping powers in the state.[43]
3.28
Mr Gary
Crooke QC observed that the examiners are
not as involved in the investigative process as the NCA examiners were, and as
a result are distanced from what is occurring. He said:
The difference with the NCA was that, when members conducted a
hearing, they were very much over the top of what was happening and made it
their business to be absolutely certain that the national intelligence based
approach was taking place. I fear that what is happening – and I emphasise that
I do not know – is that the position of the examiner is very much like the
position of the person who pitches his tent behind the grandstand and waits for
people in the game to march somebody through while they go back to the game and
the examiner is none the wiser.[44]
3.29
Invited to comment on the potential for the ACC to be a
'bolt-on facilitative mechanism for conferring these coercive powers on police
jurisdictions,'[45] he responded:
That is a very real danger. They do not have those powers but
they will use this merely, as you say, as a bolt-on, to make sure they will get
them, in what may well be an ordinary policing operation.[46]
3.30
During discussions, Committee Deputy Chair, the Hon
Duncan Kerr SC MP observed that:
...you have this creeping extension not through any malice but
because the organisation has achieved one of the objectives of the Commonwealth
– that of greater cooperation and relevance – but at some price, and that price
being its extension into areas that have never been expressly articulated or
endorsed.[47]
3.31
The ACC rejected these suggestions. The Committee asked
The Hon Mr Hannaford, an Examiner, whether he believed that the structural
change to an organisation led by police is causing leakage of the ACC’s
coercive powers and to more routine policing matters?[48] Mr
Hannaford disagreed:
The situation is that when the board makes its determination for
a special operations special investigation that provides a particular focus for
the exercise of the powers. As a result of the management mechanisms which have
been put in place by the CEO and approved by the board through the governance
oversight committee, that again provides the focus for particular operations
that are to be conducted. It is only as a result of the conduct of those
operational activities that a decision is made at an operational level that
there should an exercise of the coercive powers, and then submissions are made
to the examiners.[49]
3.32
The ACC's response emphasised that the separation of
the authorisation by the board and the use of the powers means that the use of
coercive powers is conducted at arms length from its authorisation.
3.33
Mr Michael
Manning from the Commonwealth Attorney
General's Department also explained that:
...the problem that you allude to – that this is a sort of ‘you
scratch my back and I’ll scratch yours’ approach to what issues are to be
investigated – is probably one that is inherent in any kind of national
structure like this, whether it be the NCA or the ACC. There is always that
risk and you will always hear assertions that that sort of thing is going on.[50]
3.34
A further indirect check on the inappropriate use of
the coercive powers derives from the limited availability of the Examiners, as
noted by the Hon Duncan
Kerr:
The fact that there are three examiners
occupied full-time on this task is in a sense an effective mechanism for
ensuring that only important things are addressed. ...If you expanded it, given
the way in which we now have much more facility for a cooperative approach, you
would increase the risk and danger that this would become an add-on, a bolt on,
an adjunct to law enforcement more generally across the whole Commonwealth,
instead of an exceptional, extraordinary set of powers designed to deal with
the real bad guys in the system.[51]
3.35
While the Committee appreciates that the discretion to
authorise the powers rests first with the Board, and the discretion to use them
rests with the examiners, the evidence suggests that there is at least the
perception that both the coercive and incidental ACC powers are being used in a
way that is at variance with the spirit and intention of the ACC Act. The
Committee considers that this is a matter for the internal governance of the
ACC; as a governance matter it is one which will be scrutinised regularly by
the Committee.
The ACC examination
3.36
The examination is in some respects the 'engine room'
of ACC operations. They are conducted by one of three statutorily appointed
examiners who are given wide discretion as to how the process is to be
conducted.[52]
3.37
Examinations take place in private,[53] and legal representatives are permitted
to attend, as is any other person authorised by the examiner to be present.
Summonses are issued by the examiner; these may request the attendance of a
person to give evidence (section 28) or the production of documents (section
29). The examination process is bound by confidentiality provisions and by the
secrecy provisions contained in section 51 of the ACC Act.
3.38
A person appearing before an examiner has limited
privilege against self-incrimination. Section 30(4) provides that a person may
claim self-incrimination by a document or answer, but the claim must be made
before producing the document or giving the answer. Under section 30(5), the
material cannot be used in criminal proceedings against the person except where
the proceedings concern the falsity of the document or answer or in
confiscation proceedings.
3.39
The Committee was also told that the ACC examiners
advise the witness that they may also seek a general protection from
self-incrimination although according to Mr
Hannaford this has been questioned recently.[54] Referring to this practice, Ms
Westwood told the Committee that members of
the executive of the Criminal Defence Lawyers Association endorsed:
... as a good practice [that] of allowing a witness to claim a
blanket privilege against self-incrimination – I am referring to section 30 –
at the commencement of proceedings. That facilitates the running of
proceedings.[55]
3.40
The Committee notes that this practice appears to
assist the examination process, and will ask to the Commission to apprise the
Committee of any developments in the matter referred to by Mr
Hannaford.
3.41
During the review, five issues have arisen in relation
to examinations:
-
inappropriate encroachment on the privilege
against self incrimination
-
The availability of legal representation
-
The conduct of the examinations
-
Problems with the summons process
-
Use of material from examinations
Self
-incrimination of persons charged with a criminal offence
3.42
In their submission[56]
and in evidence,[57] the Attorney
General's Department notes that it is unclear whether an examiner can summon as
a witness under section 28 of the Act, persons who have been charged with a
criminal offence, or who are the subjects of asset confiscation proceedings,
and then proceed to question them on issues arising from those proceedings.[58] The Attorney General's Department cites
two cases, Hammond v the Commonwealth[59] and Mansfield v ACC[60] as suggesting that such summonses may
not be issued, but notes that there are suggestions in more recent cases that
this is not the case although the matter is not decided.
3.43
While the abrogation of the privilege against self
incrimination is now well established – it was the subject of amendments to the
NCA Act late in its existence, and was carried across to the ACC – the issue has
emerged in relation to persons who are facing criminal charges, and who are
required to appear before an ACC examination.
3.44
The Law Council of Australia was emphatically opposed
to a person in those circumstances giving evidence to an ACC examination, although
the Council did suggest a way in which this might be managed:
It would be wrong to coerce a person to give evidence in
circumstances where the subject matter was the subject of a criminal trial and
that person would be in a position in due course of deciding whether he or she
would give evidence. It would be a matter of concern if the coercive power were
applied to force an accused person to divulge their position before a trial.
That would demean the right to silence and demean a fair trial thoroughly and
inappropriately.... Of course it does not mean that there should not be an
examination, full stop. It is merely a question of deferring that issue and
that examination until the trial itself has been dealt with.[61]
3.45
The Attorney General's Department suggested that the
solution may lie in an amendment to the ACC Act along the lines of section 21
of the Police Integrity Commission Act
1996 (NSW) or section 18 of the Independent
Commission Against Corruption Act 1988 (NSW). The Department's submission
continues:
Under those provisions the Commission may conduct and report on
an investigation while relevant legal proceedings are in progress, but is
authorised to suppress information about the investigation to ensure [it] does
not does not prejudice the fair trial of a person for an indictable offence.
...such legislation would need to be carefully crafted to avoid interfering with
the proper exercise of the judicial power.[62]
3.46
The Committee also noted in discussions with the
representatives of the Office of the Director of Public Prosecutions that the
matter may be more complicated than it first appears. Mr Kerr postulated the
following:
... somebody who is charged with a crime may still be a person of
interest in relation to another set of criminal behaviours. That seems to me to
be conceivable and it would not be improper for that person to be examined in
relation to disassociated and unrelated matters. But to the extent that there
is an overlap that might be material to the fate of the criminal proceeding in
which they have already been charged. [63]
3.47
While Mr Bermingham Deputy Director, of the Office of
the Commonwealth Director of Public Prosecutions observed that the indemnity
which is available could be used, Mr Kerr noted that this would only apply to
direct use of that testimony, and would not attach to facts which were
discovered in consequence of that testimony – so-called 'derivative evidence'.[64]
3.48
The Committee considers that it is of paramount
importance that ACC proceedings do not prejudice a fair trial, or interfere
with judicial independence. At the same time, the Committee acknowledges that
the work of the ACC should not be impeded unnecessarily, and that any ambiguity
should be resolved as a matter of priority.
Recommendation 1
3.49 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.
The conduct
of examinations
3.50
During the hearings the Committee heard a number of
concerns about the examination process, relating to the inappropriate resemblance
of the proceedings to a court, the undefined nature of the proceedings, and
lack of procedural rules.
3.51
Mr Faris
QC, recounted:
...we are shown into what appears to be a courtroom but in fact is
not a courtroom. There is an examiner sitting up, above and beyond like a
judge, but of course he is not a judge. The whole impression that it is meant
to convey is that somehow the examiner is like a judge and is an impartial,
unbiased umpire, which is just not true. The examiner tries to tell my client that
that is the case, which again I find untrue.
And
You then have the client sitting in a witness box and counsel at
the bar table. It has all the trappings of and looks identical to a court, but
it is not.[65]
3.52
Mr Faris
argues that it is 'artificial in the extreme' and the parallel to a court is
inaccurate.
3.53
Ms Westwood,
on behalf of the Criminal Defence Lawyers Association, also expressed
reservations about 'quasi court proceedings':
...questioning is often conducted as if the witness were under
cross-examination in front of a jury. ... in a kind of context where credit is a
relevant matter. It is the view of the association that in cases like that
there is a clear intent to entrap witnesses giving evidence in front of the
commission. While it is the association’s view that persons who have been
proven to have given false evidence before the commission should be subject to
penalties, in the context of ... an examination or a hearing which is an
information gathering exercise, which may concern the investigation of a third
person and their criminal conduct – the methods employed by the counsel who
assist the commission are unnecessary. They put witnesses, who are already
likely to be intimidated, into an unnecessarily combative situation. It is not
clear whether that assists in the overall objective of the commission...[66]
3.54
In its submission, the Law Council of Australia
expressed its concern at the wide discretion given to the Examiner in the
conduct of examinations.[67] In evidence
before the Committee the Treasurer of the Law Council Mr Ross Ray QC said:
We at the Law Council ... strongly believe that the examinations
should be conducted in accordance with the fundamental rules of evidence. Rules
of evidence provide a level of natural justice, and natural justice underpins
the logic of each of the rules.[68]
3.55
The Law Council's submission suggested that a set of
procedural rules for examinations be developed by the ACC in accordance with
the rules of evidence.[69]
3.56
Finally, concerns were raised at the ill-defined nature
and scope of the proceedings, which permit a kind of 'fishing expedition'
without notice to the subject of the examination. Ms
Westwood noted that the parameters of the
investigation were not explained to the examinee:
We would compare that with a situation where a person who is to
be charged or interviewed in relation to criminal offences will be given notice
of the issues and, where they have accessed legal advice, their lawyer is often
able to gain a reasonable understanding of the nature of the investigation by
speaking to police before their questioning proceeds. In our view, that
facilitates, again, the provision of legal advice and the proper understanding
of people’s rights. It is a practice that we believe does not happen at the
commission, and that leads to certain consequences.[70]
3.57
A similar comment was made by Mr
Chris Staniforth,
Chief Executive Officer of the ACT Legal Aid Office in its submission to the
Inquiry, which described two recent cases, and complained at the 'apparent lack
of accountability in the conduct of examinations carried out by the ACC
examiners'.[71]
Summons
processes
3.58
Two concerns were raised by witnesses in relation to
the summons process under section 28. The first relates to the insufficient
time allowed for the production of documents. Ms
Westwood told the Committee that a client
was served with a witness summons to which a response was required within 12
hours:
In that time, they had to produce reasonably substantial
business records as well as obtain legal advice. Generally that creates the
sort of situation where, as a lawyer, you are required to drop everything else
and deal with it, and there is often a substantial amount of advising required
in a very short time frame. In our view, that hinders a witness’s ability to
access properly qualified legal advice. [72]
3.59
The issue of summonses and return dates was put to the
ACC, and Mr Hannaford
explained that the examiners always consider the reasonableness of the time
frames allocated; however, there will be circumstances where the issue of a
summons is urgent. Mr Hannaford
continued:
It is not inconceivable that the time between the service of the
summons and the return date is inadequate. If that arises and the witness turns
up – sometimes with a lawyer – and says that they have not had a reasonable
time to get a lawyer, we grant an adjournment if it is reasonable in that
circumstance. Sometimes they will turn up with a lawyer who says, ‘I haven’t
had a reasonable opportunity to give advice.’ We take that into account and,
depending upon the circumstances, we might grant an adjournment to allow that
to occur.[73]
3.60
The second matter relates to the clarity and content of
the summons. Mr Staniforth
noted that the summons document itself:
is a densely drafted, highly technical legal document, which I
understand it has to be, but the punters out in the street do not read them...
I wonder if there could be two things: a plaining of the English so that the
guts of what is required is made clear to the recipient, and also – this is the
stronger of the two points I would make – something like that which a police
officer drafts when she or he is seeking ... an ordinary search warrant. The
warrant says pretty much what you are after.[74]
3.61
A possible consequence of this is the questioning
beyond the apparent ambit of the summons. Ms
Westwood told the Committee:
At present it has been noted by some members of my association
that the only way to deal with this matter would appear to be to initiate
proceedings in the Federal Court. ...We understand that it does not happen; therefore,
we have a situation, in the association’s view, where witnesses are extremely
vulnerable. There is an unfairness ...that could be corrected by requiring that
more information be provided at the start and that there be some reasonable
setting of the parameters of what the subject of the examination is before the
examination commences.[75]
Legal representation
3.62
Section 27 of the ACC Act provides for assistance to be
granted where the Attorney General is satisfied that it would involve
substantial hardship to the person to refuse the application; or the
circumstances of the case are of such a special nature that the application
should be granted.
3.63
However, legal aid is not available for ACC proceedings
from the State and Territory Legal Aid Commissions. While these are
administered by the states, they offer aid for both State and Commonwealth
matters, so there appears to be no jurisdictional reason why they could not
assist persons summonsed to attend or produce documents under an examination.
3.64
It is not clear to the Committee why a witness under
this legislation should not be subject to the normal legal aid regime, with its
means tested assistance. Legal aid solicitors are experienced in representing
clients in criminal law matters, and this would appear to be a far more
efficient procedure for representation than having to provide an application to
a government department before even approaching a lawyer.
3.65
Given the budgetary constraints under which Legal Aid
Commissions operate, if assistance were to be made available from the Legal Aid
Commissions, it would be necessary for funds to be provided to them for this
specific purpose.
Conclusions and recommendations
3.66
The Committee appreciates that the environment in which
the ACC examinations operate is potentially volatile. As far as short return
times for summonses are concerned, this may be necessary in circumstances where
the examiner is concerned that the material might be destroyed or altered
before it can be produced. The Committee acknowledges that at times short
return dates are unavoidable.
3.67
The Committee is also aware that the Examination
process is more analogous to the discovery or pre-hearing process or to
tribunal proceedings than to litigation. However, it appears that the summons
documents themselves may require some attention in both form and content. Mr
Staniforth's comment about the density of the prose in the document[76] suggests that ACC process is out of
step with documents used in general court and tribunal proceedings which in the
last few years have made attempts to use plain English, and ensure that the
'date time and place' information is clearly set out.
3.68
The unease about the lack of information in the
documents is also of concern – although, again the Committee acknowledges that
these proceedings are not court proceedings and the person is not being
charged. The maxim that the person must be allowed to know the case against
them does not apply, as at least at this point, there is no case.
3.69
However, the business of the ACC is 'serious and organised
crime', and the implications for the person summonsed are grave. The Committee
notes Mr Hannaford's comments regarding the granting of an adjournment to
enable the person to seek legal advice.
3.70
The Committee also notes Mr
Hannaford's offer to examine the explanatory
memorandum which accompanies the summons.
3.71
Mr Hannaford
explained that summonses are accompanied by an explanatory memorandum which
also explains to the witness that they are not to disclose the fact of the
summons having been served on them, although they may discuss the summons with
their lawyers. He continued:
I guess we have taken the view that the presence of that advice
is enough to draw their attention to the fact that they can go and see a
lawyer. But I also understand that the practice is that, when the summons is
served by the officers, that is emphasised to the person verbally – that they
are not to discuss the summons with anybody... If there is a view that we ought
to expand that explanatory memorandum, then that could be looked at.[77]
Recommendation 2
3.72 The Committee recommends that both the summons and the
memorandum be revised to ensure that as far as possible, recipients understand
what is required of them, and that procedures allowing adjournments for the
purpose of seeking legal advice be included in the ACC's examination practice.
3.73
The Committee received a supplementary submission in
which the ACC indicated that release of its Examinations Policy and Procedures
document would reveal operational considerations which it is not appropriate to
release publicly. The ACC acknowledges that there are benefits in improving
public awareness of the practices in examinations, and has indicated that it
intends to develop and release a public information bulletin.
3.74
The Committee makes the observation that there are
serious implications for clients and counsel inherent in the lack of
information regarding the ACC’s procedures.
The Committee accepts that the ACC is not a court, however other bodies
which are not courts – the Senate among them – publish comprehensive
information for witnesses called before them.
3.75
The Committee considers that to assist lawyers and
witnesses to deal more efficiently with Examinations, the ACC should produce a
practice and procedure manual. The manual should include explanatory material
in plain English, suitable for extraction and attachment to summonses.
Recommendation 3
3.76 The Committee recommends that the ACC develop without
delay, a practice and procedure manual for the benefit of practitioners and
those summoned for examination or to produce documents.
Use of
material from examinations
3.77
In evidence in Melbourne,
Ms Westwood
told the Committee of her organisation's concerns about the distribution of
Commission transcript. She noted that:
section 59 [of the ACC Act] clearly contemplates control by the
chief executive officer over where the transcript goes and to whom it goes,
there is a further issue of what happens to that information once it has left the
Australian Crime Commission.[78]
3.78
Mr Faris
told the Committee of his experience of the Crime Commission in Melbourne,
which:
has now developed the idea that you come
along and you represent your client. Your client is giving evidence and you are
taking notes.... When it is finished...legal professional privilege notwithstanding
...The examiner purports to make an order that you have to give them your notes,
which they then seal in an envelope or something. That is nonsense, but they
are serious about it.[79]
3.79
The Committee appreciates that there are secrecy
requirements covering the information obtained at an examination. However, it
is difficult to understand how a legal practitioner can be expected to advise a
client when the relevant notes have been sealed and removed.
Dissemination of Examination
transcripts
3.80
The concern by practitioners at the fate of documents
in the custody of the ACC is understandable given the provisions of section 59.
The requirements under the section of the Chair of the Board and the CEO to
provide information or documentation are broad, and extend to providing
relevant specific or general information to the IGC, to foreign or domestic law
enforcement agencies, departments of States or Territories and the PJC. There
is a limitation on material which might prejudice the safety or reputation of
persons or the operations of law enforcement agencies.
3.81
The Committee notes that it is difficult to regulate
the distribution of material of this kind. The Committee would hope that
material identifying participants would be removed before it was distributed as
general information, this would not be the case where the information was being
used in a joint operation or to inform intelligence partnership participants.
3.82
In the case of
the material held by legal practitioners, it probably relies on the
practitioner's ethical responsibility to maintain the confidentiality of
records in their possession; the ACC examination transcripts would probably be
analogous to the transcript of a matter conducted in a closed court, and the
same restrictions on its access would apply.
3.83
Ms Westwood
noted that transcript could still be required for production under subpoena –
and cited experiences in which:
certain persons, when charged with serious criminal offences,
have had their associates analyse some briefs, which may include transcript, to
identify persons they consider to be informants.[80]
3.84
Further, where this – and other issues – have been
raised:
other than a formal acknowledgement of their concerns ...nothing
further has been heard from the commission. In the view of the association,
that is not good enough.[81]
3.85
In a supplementary submission to the Committee, the ACC
observed that the Examiner makes a direction at the end of the examination as
to the persons or organisations to whom material should be published. This
decision is based on each individual case and is not governed by predetermined
policies.[82]
3.86
The CEO (or delegate) makes any decision under section
59 of the Act to release information to a third party after a non-disclosure
direction is made by an Examiner. The Commission notes that this process
involves consideration of any restrictions which should be imposed on access to
the material by the agency receiving it, and there are sanctions under
subsection 25A(14) for breach of any direction as to the non-publication of the
material. There is scope to narrow the terms of the non-publication directions
to ensure only the specific intended use is permitted.[83]
3.87
As to the subpoena of transcripts, the Commission says:
Except where a prosecution does not derive from an ACC
investigation (in which case the secrecy provision in s51 of the Act will
apply) the ACC is not exempted from complying with the general law relating to
compliance with a subpoena. The ACC will take such steps as are necessary to
protect the confidentiality and the security of information held by the ACC
(e.g. claims fro public interest immunity) but that is subject to the general
law as it applies to such claims before the courts.[84]
3.88
The Committee was concerned that the examination
transcripts contain information – it is not evidence in the sense that a court
transcript is evidence. The material can contain information which is
prejudicial to individuals, and which may never be used as a basis for legal
proceedings, although in the wrong hands could be used for retributive action
against a witness.
3.89
The Commission's supplementary submission gives some
reassurance that there are procedures which govern the use and dissemination of
transcript of examinations. The Committee cannot overemphasise the Commission's
responsibility to ensure that the distribution of material is undertaken
mindful of the potential consequences for the individuals involved.
3.90
In the light of the reservations expressed by
practitioners in the course of the hearings, the Committee suggests that the
information bulletin mentioned above, might include details of these practices,
to give some reassurance to practitioners and witnesses.
Power to gather information
3.91
As we have seen in the Chapter 2 discussion of the
purpose of the ACC, the core function of the organisation is the collection,
analysis and dissemination of criminal intelligence. It is to this end that the
ACC was granted the special coercive powers. However, also vital to the effectiveness
of this intelligence function is the extent of the ACC's legal authority to
gather relevant information from all other sources – in particular, databases
across the Commonwealth and state public sectors, and the private sector.
3.92
The Committee was told that AUSTRAC, Customs,[85] the AFP, and other Commonwealth
agencies provide information for the ACC, and the ACC reciprocates.
3.93
Three issues have come to the Committee's attention
that may operate to limit the most effective collection of information.
International
criminal intelligence
3.94
A growing feature of organised crime is its
trans-national character, and to counter these operations effectively, the ACC
must have the capacity to collect information from sources outside Australia.
There are a number of agencies which could (or do) provide such information to
the ACC, including the Australian Secret Intelligence Service (ASIS), the
Australian Security Intelligence Organisation (ASIO), the Defence Signals
Directorate (DSD), the Australian Taxation Office (ATO), the Australian Customs
Service (ACS), AUSTRAC, and the Department of Foreign Affairs Network.
3.95
The AFP provides the ACC with the intelligence from its
International Liaison Network (ILN), which has 30 posts located in 27 countries
around the world.[86] Similarly, the ACS
has officers posted in Washington,
Jakarta, Bangkok,
Beijing and Brussels.[87]
3.96
This may seem to provide the basis for a rich supply of
international criminal intelligence. However, the Committee is also aware that
officers within the networks of these other agencies have a wide range of
duties, which may see the intelligence collection requirements of the ACC
accorded low priority. At the same time, many of these officers will not have
the specialist knowledge or training to gather intelligence of greatest use. As
the ACC notes:
Intelligence collection is not the primary function of the
Liaison Officers [of the AFP] and that various demands placed on Liaison
Officers leaves little capacity to proactively identify and collect
intelligence.[88]
3.97
It is presumably for these very reasons that many
agencies, such as DIMIA and the ACS have developed their own networks of
overseas officers instead of relying solely on the representation of the
Department of Foreign Affairs and Trade.
3.98
The Committee notes the AFP's view that:
The ACC should continue to build its role as an operational
domestic criminal intelligence agency. International law enforcement issues and
intelligence are catered for primarily via the AFP's international operations...
Direct ACC involvement in international liaison and activities diverts
resources from other national priorities and poses a risk of duplication of
effort with agencies already established in this field.[89]
3.99
The Committee does not wholly accept the AFP's views in
this regard. While agreeing that the ACC is primarily a domestic agency, the
divide between what is domestic crime and what is international crime is
becoming less and less clear, and the time may come when the ACC should be
provided with its own criminal intelligence and liaison officers in key
locations.
3.100
However, at this time the Committee notes the joint
efforts of the ACC and AFP to resolve these issues.[90] It is therefore premature to make a
recommendation on this matter, however, it will remain a matter of interest to
the Committee.
Disseminations
to non-law enforcement agencies
3.101
A more pressing matter is the possibility that
continued information sharing – apart from information shared between police
forces – could require regulatory authorisation to continue its development. In
evidence, Mr Miles
Jordana, Deputy Secretary, National Security
and Criminal Justice, Attorney-General’s Department told the Committee that the
scope of the ACC's authority to do this has presented two problems:
First, a recent judgment in the Federal Court suggests that the
ACC may only be able to disseminate information to Australian agencies other
than police forces if they are prescribed by regulation. This may substantially
delay the dissemination of relevant material to an agency with which the ACC
does not deal regularly.[91]
3.102
If on examination this is the case, the Committee sees
this as a significant barrier to the ACC's effectiveness, and the matter should
be rectified without delay. The Committee considers that such barriers to
information sharing between the ACC and other agencies must be identified, and
strategies developed to overcome them.
Recommendation 4
3.103 The Committee recommends that the ACC in consultation
with the Attorney General's Department identify barriers to information
sharing, and where regulatory or legislative remedies are necessary these be
developed and implemented.
Exchanges
of information with the private sector
3.104
Mr Jordana's second problem concerned the possible
exchange of intelligence with the private sector:
there is no provision for the ACC to
disseminate information or intelligence to the private sector. This is a
problem, for instance, in the ACC’s work on financial and identity fraud. The
telecommunications and financial services industries are actively contributing
to the ACC’s development of information and intelligence holdings on fraud but
the ACC cannot disseminate information and intelligence back to the private
sector to help it prevent and respond to further attempts at fraud. This tends
to discourage corporations from cooperating because there is little tangible
benefit for them in developing the relationship.[92]
3.105
This issue is also reflected in the recent report by Sir
John Wheeler
on airport security and policing, who makes this observation:
Australia
appears to be lagging behind leading Western countries, such as the UK,
in integrating intelligence exchange between the public and private sectors,
and this requires a significant mindset change and practical action.
[F]urther major gains will require a changed culture of
cooperation, sharing and openness to new technologies and methods across
Federal, State and private sector agencies and personnel ... [.][93]
3.106
The Insurance Australia Group (IAG) submission notes a
number of ways in which the ACC could better target motor vehicle theft and
financial crime. The submission suggests a task for including the ACC and the
IAG to develop a national treatment plan for insurance crime in Australia.[94] The Committee notes that there the ACC has
already provided assistance to the IAG in a study undertaken by the Economist
Intelligence Unit (EIU) on the cost and impact of insurance fraud. The ACC
collated and de-identified data to ensure confidentiality.[95]
3.107
There can be no objection to the ACC and the private
sector engaging in task forces and research, provided that the information
given is not linked to an identifiable entity. However when the matter becomes
one of sharing intelligence or information as the IAG suggests in its earlier
submission cited above, this raises a much more difficult and controversial
problem centring around the protection of personal information – a fact
acknowledged by Mr Jordana.[96]
3.108
The Committee understands that it is extremely
difficult in the complex environment in which society – and criminals –
operate, to strike a balance between the need for intelligence on criminal
activity and the protection of the individual's right to privacy.
3.109
The Committee notes that the Attorney General's
Department is currently in discussions about this matter with the ACC. As any
alteration to the present arrangement would require legislation, the Committee
would consider it appropriate for an exposure draft to be distributed among the
peak bodies – public and private – for consultation. Such draft legislation may
also be a matter the Committee would examine in a separate inquiry.
Effectiveness of the coercive powers and the issue
of contempt
3.110
A matter that generated considerable discussion in the
inquiry is the growing incidence of witnesses failing to attend an examination,
producing documents, or answering questions.[97]
Under section 30 of the current ACC Act, such persons may be charged with an
offence, and if convicted by the Court, may receive a fine or up to five years
imprisonment.
3.111
To date, there have been seventy-three referrals to the
Commonwealth Director of Public Prosecutions for these offences. As Mr
Bermingham told the Committee:
We have completed about 39. Of those 39, only seven had been
finally determined by a finding of guilt or otherwise. There was one acquittal
and there have been six convictions. So we see it as fairly early days, looking
at the history of events. Of those six matters, the penalties ranged from a
fine in two instances to custodial terms imposed in the other four. They ranged
from a very short period to terms of two or three months and 12 months.[98]
3.112
However, the evidence suggests that either these
provisions, or their administration, requires attention to ensure less delayed
outcomes.
3.113
The offences as they exist in the ACC Act must be
prosecuted through the courts. However, as Mr
Melick told the Committee, similar
provisions in the NCA Act caused difficulties:
By the time they got around to prosecuting, it was well down the
track. ...I was always very keen to have the contempt power unless we could get
guaranteed cooperation in getting people before the courts almost straightaway.[99]
3.114
Mr Hannaford
told the Committee that the examiners are of the view that there needs to be 'some
strengthening in this area'[100] and Mr
Jordana also indicated that the process is
too slow.[101]
3.115
Four options, singly or in combination, have been
proposed to increase the effectiveness of the coercive powers:
-
The introduction of a contempt power
-
The development of expedited procedures for
handling the matters before the courts
-
An increase in the penalties
-
Vary the bail presumption
Contempt
powers
3.116
The first option is to give the Commission itself
powers to punish for these offences rather than have to refer an offence to a
court. This has the advantage of being able to deal with a recalcitrant or
unwilling witness immediately.
3.117
There is also some precedent for the consideration of
such powers. In 2000, the NCA Amendment Bill included contempt provisions,
although these did not proceed. The Independent
Commission Against Corruption Act 1989 (NSW) also initially contained
contempt provisions, but these have since been removed.
3.118
This option did not find favour with a number of
experienced lawyers. The Hon Jerrold
Cripps QC, a Commissioner of ICAC, told the
Committee that ICAC's contempt powers had been removed because:
it was thought those contempt proceedings are appropriate to
courts of law but they should not be very readily transposed to administrative
tribunals.[102]
3.119
Similarly, Mr Costigan
QC, a former Royal Commissioner, told the Inquiry:
I have never been a great fan of the contempt concept. I think
if people are not going to answer questions then they are not going to answer
them. My experience when I was doing the royal commission, particularly in
terms of confidential hearings ... was that I did not have much trouble with
people refusing to answer questions; my difficulty was that they told lies.[103]
3.120
The Law Council of Australia agreed:
It would be our position to think that the person should not be
dealt with by the ACC for contempt but that the matter be referred to a
judicial officer to deal with.[104]
Expedited
proceedings
3.121
The second option is to make arrangements to ensure
that offences of this type are dealt with by the courts in the quickest
possible time. As Mr Terry
O'Gorman told the Committee:
If there is a delay then it is a matter, whether by negotiation
with the court or by legislation, of giving it a fast-track.... I would not have
thought that would be particularly hard to do.[105]
3.122
Mr Hannaford,
an ACC Examiners, appeared to agree with these views.[106]
Increased
penalties
3.123
As noted, under sections 29 and 30, if a person refuses
to attend, refuses to produce documents, refuses an oath or affirmation or
refuses to answer questions, there is a maximum penalty of 200 penalty units
($22,000) or five years imprisonment. Commissioner Keelty
was of the view that these penalties should be increased.[107]
3.124
The Attorney General's Department submission offered a
slightly different view:
The existing penalties are probably high enough in principle to
deter any witness who would be concerned at the prospect of imprisonment, but
their effectiveness depends on the ease of prosecution and the willingness of
the courts to make full use of the available penalties.[108]
Remove or
change the presumption in favour of bail
3.125
Another suggestion was removal of the presumption in
favour of bail for persons who refuse to answer questions at an examination.
Commissioner Keelty said in evidence;
The presumption to bail in these cases needs to be withdrawn, I
think. There is no point having a person before an ACC hearing, charging them
with not cooperating with the hearing and then providing them with bail. So I
think the presumption to bail has to be eliminated and the penalties have to be
much more severe than they already are. [109]
3.126
The presumption in favour of bail has been contracting
for some time. In NSW, numerous amendments to the Bail Act 1978 have resulted in a list of offences for which there
is a presumption against bail. These include certain drug offences, repeat
serious property offences and serious firearms and weapons offences.
3.127
The Law Council of Australia did not support the
proposition on the basis that the purpose of refusing bail is to protect the
community:
To simply reverse the onus here seems to be really a threat
rather than a logical response to a risk to the community and a threat to the
individual to then behave and give evidence in accordance with the wishes of
the examiner.[110]
3.128
Mr Costigan
was also not in favour of reversal:
I think you start off with the presumption that people should
not be locked up without good cause. There are some well-defined exceptions in
the Crimes Act around the country and it requires a very serious offence like
murder to get the reversal. I am not sure what happens in the terrorist
organisations, but I think there might be a case there for reverse onus on
appropriate evidence, but not generally.[111]
Conclusions
3.129
The Committee agrees with witnesses that it is not
appropriate to provide the ACC Examiners with contempt powers, which are
appropriate only to courts.
3.130
The Committee is not convinced that there is any
substantial reason to remove the presumption in favour of bail nor to introduce
a reverse presumption at this stage, although the Committee concedes that there
is always a risk that a person accused of an offence under the ACC Act may
abscond before the matter is dealt with. Should there be evidence that this is
a problem for the ACC the matter could be reconsidered, but any action to
remove or alter the presumption should not, in the Committee's view be taken
only because there is a fear that witnesses might disappear.
3.131
The Committee considers that the most
prudent and potentially the most effective measure, is to retain the current
offence provisions, but come to an arrangement with the courts to expedite the
court's dealing with the offence. A timely disposition of these matters could
be achieved through the implementation of a suggestion by Mr
Kerr that 'a protocol between the
Commonwealth and the courts [be developed] to enable priority to be given to
disposition of these matters.'[112]
3.132
Although officers of the Commonwealth Director of
Public Prosecutions foresaw difficulties with this approach,[113] the Committee points out that there
are already many matters that go before the courts which are the able to be
dealt with urgently.
3.133
The Committee also suggests that consideration be given
to allow State Courts to deal with these matters.
Access to police powers
3.134
During the inquiry there was discussion about the most
appropriate arrangements for ACC officers to be granted police powers,
including the right to carry firearms, and the right to use of force. This is
likely to be necessary in circumstances where staff may need to apply for and
execute warrants or may need to be armed for self-protection, and are likely to
fall into one of two categories:
-
Either a former member of a law enforcement
agency who takes up a position as a civilian team leader of surveillance or as
a civilian team leader in an investigation or intelligence area; or
-
seconded police officers from a state/territory
and who are required to operate in another state or to deal with Commonwealth
matters.
3.135
In the short term, this requirement was addressed by:
a limited system of swearing specific ACC officers as AFP
Special Members allowing them to exercise certain police powers, including use
of force. The AFP has placed a range of conditions on the use of the Special
Member provision including minimum training requirements for ACC officers and
the applicability of AFP critical incident management procedures in any
incident involving AFP Special Members within the ACC.[114]
3.136
Commissioner Keelty
explained in evidence that these would generally be people with particular
skill capabilities, and 'by and large they would all be people who are police.'[115]
3.137
The use of these special constable provisions raises
several concerns. The principal problem is, as Mr
Jordana of the Attorney General's Department
explained: that:
these persons are not under the control of the police force
which appointed them but those same police forces remain notionally responsible
for their use of police powers.[116]
3.138
In so far as the first category of civilian members of
the ACC being sworn in as special constables, there is the additional concern
that it blurs the line between police and civilians, notwithstanding that in
practice most of the individuals concerned will be ex-police. This concern is
twofold. First is the practical issue of ensuring that the requisite standards
of training and competence are met. Second is the appropriateness of having
civilians exercising police powers.
3.139
The exact extent of the powers concerned have not been
identified. The Committee is not therefore clear whether the requirements for
these ACC civilian officers is limited to the carriage of firearms, or extends
to the full range of powers of an AFP officer.
3.140
All officials agreed that the special constable
arrangements should be viewed only as temporary.[117] Mr
Milroy told the Committee that:
the current arrangements are probably not satisfactory in the
long term and that there is a need for a class of officer or that the ACC
should see some protection under its own act for officers who are required to
carry out specific operational duties who are public servants – that is, who
have the required training and skill to carry out specific duties but who are
no longer sworn officers of a police or a regulatory body.[118]
3.141
Mr Jordana
proposed one solution:
Options for addressing the ACC’s needs that could be considered
include creating a class of authorised ACC officers to exercise some or all of
the powers of a constable or only focusing on particular powers or immunities
for particular circumstances or people.[119]
3.142
The Committee agrees that in the longer term it is not
appropriate to use the current arrangements for using special constables of the
AFP, particularly as it is not entirely clear what the powers are, what they
need to be, and what circumstances necessitate appointing them.
3.143
The Committee
notes the solution to this issue adopted by the United
Kingdom recently for its new Serious
Organised Crime Agency (SOCA), a body analogous to the ACC. The establishing
legislation, the Serious Organised Crime
and Police Act 2005 in the United Kingdom
provides Serious Organised Crime Agency with the powers of a constable, an
officer of Revenue and Customs and a person having the powers of an immigration
officer.[120] The appointment may be
limited by time, and by the extent and kind of powers to be exercised.
3.144
The ACC Act has
no such specifications. The Committee considers that the current uncertainty is
inappropriate and that where ACC civilian officers have a legitimate
operational requirement to exercise police powers, these powers and the
conditions for their use should be specified in the ACC Act. This would be
consistent with the powers granted to the officers of similar specialist
agencies such as ASIO or Customs.
3.145
The Committee also notes the experience of several
other agencies in relation to the carriage of firearms.
3.146
Mr Lionel
Woodward, Chief Executive Officer of the
Australian Customs Service, told the Committee that his agency has two
categories of armed employees. The first deals with wildlife, and the second –
more recently created category – are located in the National Marine Unit. Mr
Woodward continued:
I think the lessons to be learned are to ensure that national
standards are applied, that a firm legislative basis is formed, that there are
operational procedures which make absolutely clear the circumstances in which a
firearm can and cannot be used and that it is a last resort – our people are
equipped with a range of other devices, including capsicum spray – and that
there is training to the AFP standard, which we do.[121]
3.147
Conversely, Mr
John Pritchard Deputy
Commissioner of the ICAC, told the Committee
that ICAC investigators were armed until about three or four years ago. The
matter was reviewed due to Occupational Health and Safety issues which arose,
and the investigators were disarmed.[122]
Mr Pritchard
continued:
... the surveillance unit has recently had
its arms restored because of the nature of the work they carry out. There is a
strong case that there is a greater need for them to have some personal protection
in the way they operate.[123]
3.148
Mr Pritchard
also told the Committee that the ICAC has memorandum of understanding with the
New South Wales Police to allow it to draw on their resources to assist in
situations where a risk assessment is made for a particular investigation. The
example cited by Mr Pritchard
was the execution of a search warrant where the risk assessment suggests the
occupants of premises could be dangerous.
3.149
There are legitimate concerns surrounding the use of
ACC personnel who are not police having access to arms and the use of force. However,
there are also persuasive arguments from other agencies, and it is interesting
to note that the ICAC has had to reinstate the ability to bear arms for its
surveillance staff.
Recommendation 5
3.150 The Committee recommends that the ACC consider
statutory proposals to amend the ACC Act to provide categories of ACC officers
with the necessary identified powers, including such matters as the powers to
apply for or execute a warrant, and the right to carry a firearm. These should
replace the current system of the use of Australian Federal Police special
constable provisions.
3.151
From a broad strategic perspective, the Committee notes
that these developments, while justified, advance the perception of a gradual
drift by the ACC to a body increasingly resembling a police force, and the
erosion of the distinction between the ACC and the AFP. The ACC is not, and
should not be, a police agency. This is a matter that the PJC will continue to
observe closely in the future.
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