Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

I rise to speak on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008. This bill was introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. That bill provides for the criminalisation of cartel conduct, including penalties of up to 10 years imprisonment, and will necessitate the creation of an indictable criminal jurisdiction in the Federal Court for the trial of offences.

Other Commonwealth offences are heard in the state and territory courts. The Federal Court is to be invested with this jurisdiction because of its extensive experience with civil and quasi-criminal cartel cases under the current Trade Practices Act. However, I understand that, where prosecutions involve offences under both the cartel provisions and state or territory law or other Commonwealth offences to which this bill does not apply, state or territory superior courts will be able to hear those matters without the offences being disjoined.

The amendments proposed in this bill provide for the complex procedural framework required by the new jurisdiction, including the form of indictments, entry of pleas, bail, pretrial proceedings, empanelment of juries, conduct of trials, sentencing and appeals. The procedural provisions have been modelled upon existing state and territory provisions and will apply in all Federal Court trials, regardless of where the trial is being conducted. For consistency, in this area of law at least, this is preferable to applying the procedural and evidentiary provisions of the relevant state or territory.

While the criminalisation of serious cartel conduct and the creation of the framework to deal with it have the opposition’s support, we have serious reservations about two aspects of this bill. The first of these concerns the accused’s right to silence. Proposed section 23CF requires an accused who takes issue with a fact, matter or circumstance disclosed in the prosecution’s case to state the basis for doing so. This may compromise an accused’s right to silence. The justification stated in the explanatory memorandum is that this will permit the court to narrow the issues to be dealt with at trial. However, efficiency is not an adequate justification for dispensing with age-old rights, especially such important human rights as the right of an accused to remain silent. Alternatives exist, using the examples from other Australian jurisdictions. A provision such as that applicable in New South Wales could be adopted, which allows such a procedure unless it will cause prejudice to the defence. Alternatively, there should be no adverse consequences flowing from the accused’s nondisclosure, which is the practice in Victoria.

The second issue concerns the presumption in favour of bail, which has also existed under our law since ancient times. The proposed section 58DA provides that, if the court refuses to grant bail, the accused cannot make a subsequent application unless there has been a significant change in circumstances. This is more onerous than the provisions applying in any other Australian jurisdiction. Proposed section 58DB is also silent as to whether there is any presumption in favour of bail. In other jurisdictions there is generally a presumption in favour of bail except in specific circumstances. There is also no provision in this bill for the court to provide reasons for refusing bail.

The right to silence and the presumption in favour of bail are among the individual human rights recognised and protected by our common law for centuries. For a government such as this one, which paints itself as having a human rights focus, it is curious to say the least that its first attempt at a federal criminal jurisdiction would seek to sweep away rights recognised since the Magna Carta.

This bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs on 4 December 2008 for inquiry and report by 20 February 2009. Submissions have been received from, among others, the Attorney-General of New South Wales, the Law Council of Australia, the Law Institute of Victoria and the Criminal Bar Association of Victoria. Some of these submissions have been highly critical of the issues I have described.

The opposition will not deny this bill a second reading in this place. What we will do is await the full report and recommendations of the Senate committee, with the benefit of expert submissions, and seek in the Senate to achieve the appropriate balance in this bill.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008. This bill is a cognate bill with the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. It should be enacted at the same time to avoid delays in bringing criminal prosecutions for very serious cartel offences in the Federal Court.

This is what the Australian population would call white-collar crime. Price fixing—engaging in anticompetitive and anti-free-market behaviour in the marketplace—by companies is simply unacceptable to the Australian community and to my community in the federal electorate of Blair. They want to know that when they go into the supermarkets the prices have not been fixed between the big players. They want to know that when they go to the petrol bowsers the big petrol companies have not got together and rigged the price. They want to know that when they go to purchase a new motor vehicle deals have not been done to prevent the best possible price being offered. The laws of supply and demand, the laws of the market, should operate to ensure that the Australian public get the best possible price for the produce, goods and services they purchase.

This bill is about ensuring that those kinds of cartel behaviours are dealt with the way the Australian community expects them to be. For a long time white-collar crime was treated less onerously and punitively than blue-collar crime was. The media often portrays blue-collar crime sensationally. You only have to look at news reports, at the 6 pm news on a Sunday night, to see that it is all about blue-collar crime. But many people engaged in white-collar crime, cartel type behaviour, often seem to be punished with lesser punishments, and that rankles. It irks and irritates the Australian community that the big fish seem to get away.

Having a criminal jurisdiction in federal law that deals with indictable offences—serious criminal behaviour and serious anticompetitive behaviour—is a good legislative reform and a good criminal law reform which will enable the Australian community’s faith in the criminal justice system to be reinforced. Too often they feel that the big guy gets away with it. They feel that they are powerless and that if you have got enough money you can get away with anything. Having a criminal jurisdiction in the federal law which prosecutes companies and individuals for serious cartel offences is important to the integrity of the criminal justice system and the Australian people’s faith in the criminal law in this country.

It is also important because for too long we have had state and supreme courts dealing with areas like this in more costly ways. Often it costs a lot more to go to the Supreme Court of Queensland than, say, the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court of Australia, because the procedures in federal law are often more streamlined and geared to early resolution. I know that in Queensland we have uniform civil procedures rules but they are more onerous than the areas of federal law. So bringing criminal law into the federal jurisdiction is the right thing in terms of cost, effectiveness and the expedition of justice.

Having a uniform indictable criminal procedure across Australia is right; it is the way to go. My state of Queensland had a dingo fence—legally, in terms of the practice of law—which was eventually knocked down. The truth of the matter is that we have a system of laws in this country with state law based in the states and the complication of federal law with it. I am sure our founding fathers would have thought differently looking at Australia in the 21st century than they did in the 1890s. We are left with what we are left with, and so we have to deal with the system that we have in terms of state and federal relations and the interaction of criminal law.

Criminal law, generally, is dealt with in the state systems at the magistrates court. If you go to any magistrates court or court of petty sessions around this country you will see people there on a regular basis—heaps of them—with duty solicitors and legal aid lawyers there to give advice. Most of it is real blue-collar stuff and mostly, if you have practised in the area of criminal law, you have dealt with really small stuff. It is the really complicated, difficult business records, commercial relations and corporate structures that are hard to really get into. They do not appeal to the 6 pm news on Sunday night. It is too easy to talk about someone hitting someone, someone running over someone or someone abducting someone. It is easy to do that in 30 seconds on Channel 9, Channel 7 or Channel 10.

But the sorts of criminal behaviours that people have got away with for a long time should be dealt with in the federal law. If we are dealing with serious criminal behaviour and trade practices legislation it should be dealt with by the Federal Court. Giving the Federal Court indictable criminal jurisdiction is the way to go. It is consistent with our responsibilities as federal members of parliament, it is consistent with the integrity of the Federal Court system and it is the right thing to do, to have a uniform system around the country.

The Federal Court is being given this jurisdiction because it has significant expertise with cartel conduct in civil jurisdiction. The state courts—supreme, district and magistrate—simply do not have the expertise. There is not the jurisprudence or the history of the body of case law and precedent that the Federal Court has. Giving the power to the state courts would not have been the sensible thing to do. Giving power to the Federal Court was the right call. Having a uniform set of procedures will remove the need for judges and officers of the Federal Court to become familiar with the very different sets of rules and procedures for every Australian state and territory.

I feel fortunate that I practised law in South-East Queensland in the Brisbane-Ipswich area. It would be dreadful to be practising at Coolangatta or Tweed Heads and having to deal with across-the-border issues all the time. You have to be familiar with the different rules and regulations you face if you go across the border between Coolangatta and Tweed Heads. Getting uniform procedures in this country in terms of federal law in criminal jurisdiction is the right call for us. It is not the case that you expect a judge who practised in commercial and criminal law in Brisbane—perhaps a QC—to know what the situation is in Tasmania. Having a uniform system of rules and procedures will ensure that you do not have to familiarise yourself with the rules and procedures relating to the law in Tasmania. It is consistent with the efficient, effective and good operation of our court system.

It means that judges will become very familiar with rules and regulations. If you had appeared before any federal magistrate or Family Court judge who dealt with the rules and regulations under those particular pieces of governing legislation—the Family Law Act and the Federal Magistrates Act—you would have seen that those judges and federal magistrates became very familiar with those laws, procedures and rules. I have appeared before many of them, and I know they are able to quote chapter and verse in a snap because they are used to it. But the hypothetical QC from Brisbane who is now a Federal Court judge would not necessarily know what the criminal practice and jurisdiction procedures in Tasmania are and would have to learn them. So it is important we get uniformity.

The best features of the state and territory criminal law procedures have been identified by the Federal Court, by the Commonwealth Director of Public Prosecutions and by the Law Council of Australia. So there has been extensive consultation with stakeholders in the circumstances. No-one can say they have not been consulted, and we have got the best possible outcome in the circumstances.

The Federal Court has been given the full range of powers it needs to conduct this jurisdiction, to exercise indictable criminal jurisdiction for serious cartel offences. You can imagine what will happen in these types of cases. They will be very similar to what you would have seen if you had gone through, regrettably and unfortunately, criminal charges against you for common assault, indecent dealing or use of illicit drugs. So the procedures would be very similar. In those state jurisdictions, on serious matters that go to the Supreme Court, say, being charged with an offence such as committing murder, you go through a Magistrates Court procedure, a pretrial procedure, a committal type procedure. There is bail, there is empanelling of juries, there is conducting of trials, there is the sentencing if convicted, with sentencing reports that go to the psychological or psychiatric condition of the perpetrator. There is the victim’s response—people also can have the opportunity to say how they have been affected. And there is the opportunity for appeal.

In some of the Commonwealth court buildings I have been to around the country we really have not taken enough notice of the actual layout of the building. In some of those court buildings, and I think particularly in Brisbane, South-East Queensland, where I come from, there really needs to be some thought given to the layout. I heard a previous speaker talking about his experiences as a police officer in security for the courts, which is very important. But we need to think better about how we set out our courts. If we are going to give the Federal Court jurisdiction and they are going to empanel jurors, we had better have a good, hard look at how we actually physically arrange the courts. A lot of the courts I have been into really have not got seating and accommodation and are not set up to deal with these types of matters. They are mainly dealing with civil matters, less contentious matters in terms of people’s liberty—bankruptcy, trade practices, family law—and they do not necessarily have all the seating arrangements and the security that we need for jurors. So we are going to have to think long and hard and very seriously about protecting people, and their identities as well. We have to think about accommodation for jurors. There are 12 people. There is the bailiff. Where are they going to go? What rooms are going to be provided? We have to think seriously about how we construct the physical layout of the courts, the number of rooms, the security aspects, because we are dealing with very serious matters here. We will have to spend some extra money on setting up our courts. I expect some changes. I expect there will be some discussions about how many extra dollars we will have to spend. It might be good for employment of tradesmen, I imagine, because we are going to have to make some changes.

When we are dealing with these types of matters and dealing with complex anticompetitive behaviour, we are really dealing with matters that impact upon people’s lives. It is not some airy-fairy thing. When consumers go to purchase goods, they want to know that those goods are being offered at a fair price and at the best price. They want to know also, as I said before, that if people have rigged the price of those goods, if people have acted in an oligopolistic way, in an anticompetitive way, in a cartel type way, they are going to be prosecuted. They want to know they can have faith that if people do these sorts of things they will be dealt with.

I want to applaud the Law Council of Australia for what they have done here. They have been a very constructive partner in law reform in this country. We have seen their input in some of the legislation that has gone through the House of Representatives today. The officers of the Federal Court and the Australian Competition and Consumer Commission have also played an important role in these changes as well. The Commonwealth Director of Public Prosecutions I am sure has had a big say in how this has gone ahead, and the Australian Federal Police and the office of the Privacy Commissioner too.

I have heard a couple of comments made by the member for Farrer in relation to some of the changes in the legislation and how it might impact upon people and their lives. It is interesting that a representative of the previous government talked about the Magna Carta. I do not think that the previous government had a particularly good record when it came to dealing with people in adverse or difficult circumstances, particularly those who came to this country on leaky boats fleeing oppressive regimes and were put in detention in some terrible locations. I do not think on this side of the House we are to be lectured when it comes to the rights of individuals by representatives of the previous Howard government on these types of matters. I do think it is important to have efficiency in our systems and I do not think that we are looking at a significant abrogation of the right to silence. We are dealing with very serious matters. We are talking about imprisonment for 10 years. These are very serious offences and we have to treat them seriously. We have to make sure our court system is efficient. We have to make sure our prosecution services are well financed and our police are given the powers they need to stamp out this sort of behaviour. They need to have the same sort of resourcing that the Australian Taxation Office has got in Operation Wickenby. We need to resource the Australian Federal Police well and resource the Commonwealth Director of Public Prosecutions well and we need to ensure that the court has an efficient way to go about it.

I do not think that the Australian public think that if a person has been denied bail that they should then be able to turn around a second, third or fourth time and make an application for bail again. If you are engaged in these types of behaviours, you often have lots of resources. Often it is directors of very big companies that we are going to be prosecuting because they have the resources to engage in these types of behaviours. If they can afford silks, expensive lawyers, they can afford to run into court every day of the week and argue why they should get bail. A provision which says that if they have been denied bail once they can then only make an application a second time if there is a significant change in circumstance is consistent with other law practices. Material change in circumstance is the sort of thing that justifies people revisiting other cases, for example. We have dealt with family law today in this House. In family law, you can bring applications to vary certain settlements if there has been a material change in circumstance. Material change in circumstance is one of the bases for revisiting an order in relation to contact with children—what we used to call ‘custody’ many years ago. The Australian public know what that really means. They do not expect the court system to be clogged up by rich litigants able to afford high-priced lawyers to bring in applications every day of the week just because they do not like one judge who denied them bail.

I think that the member for Farrer’s concerns are misconceived and that she is wrong. I think the Australian public believe in a fair go and that people should have their day in court. If someone is denied bail then they can make an application again once their circumstances change, but not every day. I think it is important that there is integrity, consistency and efficiency in our court system.

People who are charged with criminal offences have the right to legal representation and their day in court. Any of us who go through these types of criminal procedures because of ourselves, our friends or our families know what impact they have on people’s lives. I do not believe the concerns of the other side are—(Time expired)

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I do not intend to delay the House long with this contribution. The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 is the first time that any government has introduced criminal jurisdiction to the Federal Court. When I addressed the parliament in relation to the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 just a short time ago, I outlined how for many decades in Australia we did not actually have a federal court system other than the High Court and that the state courts used to exercise federal jurisdiction. I personally believe that was a better model. But, having said that, we now have a large number of federal courts of various types, including the Federal Court of Australia.

The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008, as was indicated by the Attorney-General in his second reading speech, has been introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. As the Attorney pointed out, the latter bill will amend the Trade Practices Act to introduce new offences for serious cartel conduct. Honourable members have spoken at length about the seriousness of cartel conduct and how the Federal Court, because of its civil experience with cartel conduct, should be the appropriate court to deal with criminal matters flowing on from that sort of behaviour. Currently the state and territory courts have that jurisdiction and I am yet to be convinced that it is an appropriate way to go to invest, for the first time ever, the Federal Court with this sort of criminal jurisdiction.

The government tells us that it does not have any intention of expanding the criminal jurisdiction of the Federal Court beyond this matter, but once you accept the government’s decision you will see the bill quite logically seeks to set up all of the infrastructure to enable the Federal Court to carry out this role as a criminal court. The member for Blair talked about the need to have appropriate provisions for juries and so on. I think that, given the fact that the Federal Court is being invested with criminal jurisdiction in only one particular area, the cost of doing this certainly outweighs the benefits. There has been discussion on how judges cannot be experts on different sorts of evidentiary requirements around the country, but we have a system that works now and which I believe is not broken. If it is not broken, why seek to fix it? I may well not be in a majority with my attitude to the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 but, having said that, I wanted to make the point.

I would, however, like to endorse the remarks made by the member who led the debate for the opposition, the honourable member for Farrer, when she spoke about the serious impingement on human rights and civil rights in this bill. When he spoke, the member for Blair addressed us at length about how some of these defendants would be extremely wealthy, able to hire quite costly Queen’s Counsels and other senior barristers, and that somehow it was wrong to enable them to make applications for bail on more than one occasion—the way he put it was ‘day after day’. I believe that in a democratic society civil rights are so important that, whatever virtue the member for Blair may have in his argument, civil rights really are very much more important.

Having said that, this is legislation which is supported by both sides of the House. I imagine that it will be carried pretty quickly by this place, given the example of the legislation last night, and I suspect by the other house as well.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! It being approximately 2.30 pm, the debate is interrupted in accordance with the resolution agreed to earlier. The debate may be resumed at a later hour.