Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I am pleased to speak on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. As the Minister for Home Affairs, the Hon. Bob Debus, said in his second reading speech, this is the first criminal law bill that he has brought before the federal parliament. I could not let it go through, therefore, without speaking on it and saying something about him as well. He said in his second reading speech that he looked forward to bringing many more bills forward, including a victims’ rights package and some federal sentencing reforms, and each of the large packages will be the subject of extensive public consultation. In relation to the minister, I would say that he did have a distinguished career in the New South Wales parliament. As Attorney General, his reputation was one of someone who did consult extensively with all sections of the community—with the bar, with the solicitors and with the general community—and that of someone who always considered the position before he brought forward legislation.

My concern is that we are seeing less and less of the likes of the minister these days and that too often we are seeing politicians in senior and responsible positions reacting to the lynch mob in the community and reacting to the hounds in the press gallery. Basically what concerns me is that we are now having trial by media, and in effect we also have a situation where there is no longer a presumption of innocence; it is a presumption of guilt. This is not a recent phenomenon. I have made the point in other places that we had a High Court judge, Lionel Murphy, who could not even get a fair trial. At his first trial there were six points of law on which a properly constituted court of criminal appeal and a court of appeal unanimously agreed. They did not need to decide on another 18 points in granting him a second trial in which he was ultimately acquitted of what he was charged with. What that means is that we as legislators need to be very responsible and careful in how we frame laws. We must not throw out those principles of justice that have been with us for a very long time; we must learn from the mistakes of the past and not repeat them. I am not saying there should not be new laws. What I am saying is that we as legislators need to be careful not to go to the lowest common denominator.

The legislation before us does not do that. This is a situation where, frankly, there are some miscellaneous but important amendments to the Crimes Act 1914, the Australian Federal Police Act 1979 and the Crimes (Aviation) Act 1991. The explanatory memorandum says that the first amendment retrospectively re-inserts the penalty for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979. There is a maximum penalty of two years imprisonment for the secrecy offence and this was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. So this amendment does not alter the elements of the offence but it does re-enact the penalty retrospectively to when the penalty was repealed.

Retrospectivity is something that happens regularly in civil matters and it can happen in criminal matters. The High Court considered this in the case of Polyukhovich v The Queen. You are able to have retrospective legislation in relation to criminal sanctions that are framed in a general way but not in a particular way. For instance, if there were an attempt to retrospectively deal with criminal matters in relation to me in particular and capture conduct directed at me in particular, there is an argument under Polyukhovich that that might not survive legal challenge. So the retrospective nature, particularly of this piece of legislation, is something that no-one should be alarmed about; it is just that it was inadvertently left out in 2006. I think that is a proper clause for the parliament to support.

The second matter deals with deferring the second review of part ID of the Crimes Act 1914 until November 2009. In relation to that, the explanatory memorandum says:

The purpose of this amendment is to ensure NCIDD—

that is, the National Criminal Investigation DNA Database—

has been fully operational for some time when the review takes place. Interjurisdictional matching between most jurisdictions only commenced in mid-2007.

The explanatory memorandum goes on to say:

For a review to be fully effective, it is desirable that a body of cases to have progressed from matching, to investigation, to trial, so that there has been a real test of the powers and safeguards in the legislation.

That is where the recommendation is that the second review will need to commence by 1 November 2009. Again, in my view that is a proper matter for us to legislate on. There is no point in having a review if it is not really going to achieve anything by commencing the review no later than 1 November 2009. I think we can have a substantial review that is meaningful. So, in relation to the second matter that this legislation is addressing, it is not controversial.

The third matter relates to amending the Crimes Aviation Act 1991 to ensure standard criminal offences apply on relevant flights. The explanatory memorandum says:

The Crimes (Aviation) Act governs crimes and other acts committed on aircrafts or in airports or related facilities. Section 15 of the Crimes (Aviation) Act is intended to ensure that standard criminal offences (eg theft and assault) apply on flights commencing or finishing in Australia and to Australian aircrafts in flight outside Australia. These include:

any aircraft engaged in a commercial flight with other countries or among the States and Territories

any aircraft engaged in a flight that started in Australia

an Australian aircraft engaged in a flight wholly outside Australia, and

a Commonwealth aircraft or defence aircraft.

It goes on to say:

To ensure that relevant criminal laws apply on board these flights, section 15 of the Crimes (Aviation) Act applies the Crimes Act 1900 (ACT) (ACT Crimes Act) and the Prostitution Act 1992 (ACT) to relevant flights. However, many offences which were formerly in the ACT Crimes Act now appear in the ACT Criminal Code. The amendment will ensure that the ACT Criminal Code as well as the ACT Crimes Act applies to conduct on relevant flights. The amendment will also allow regulations to be made to specify particular ACT laws that apply on relevant flights. This will provide flexibility in the event of future changes to ACT criminal law.

Again, I think those are provisions that a reasonable person could not object to. What we are doing is putting beyond doubt the fact that this sort of conduct is criminal in relation to relevant flights—and we have the jurisdiction to do that; there is no doubt. There has been legislation in relation to Australian citizens and indeed others, and I do not want to go into the constitutional niceties of that.

I do not have any problem with these sorts of tidying-up matters when they are not really expanding beyond the existing principles of the criminal law; I have a problem when there is an attempt to expand and go beyond existing principles. That is why, when we were in opposition, I had some problems with the first drafts of the antiterrorism laws and the ASIO Act. As it turned out, the then government and the then opposition sat down and talked it through and we agreed on a set of amendments that brought those pieces of legislation within the parameters of the criminal law as it was understood. We had the government and the alternative government agreeing on what I think were very serious offences but offences that filled in gaps that were in the existing criminal law.

I think as legislators we cannot have a situation where we say ‘no more laws’; if there is a gap, and it can be demonstrated that there is a gap, we have a duty to protect our citizens. So I think it is appropriate to bring in those laws to clarify what happens in relation to this third matter of aircrafts. People should not be concerned that there is a big overreach here by the Commonwealth. To me it seems there has got to be some consistency; there have got to be some consistent principles.

That is why I am very supportive of what the Minister for Home Affairs is doing in amending this act. Because of the amount of legislation that goes through this place, at times we are going to have the situation where something goes through and it subsequently needs to be remedied. That happens to both sides of politics; it is not unknown. We have had instances in the past, in the time that I have been here, where we have had to make slight amendments to legislation because it is not properly numbered or whatever. So there is no great conspiracy about it. As for the principles we are talking about this evening, particularly the retrospectivity in relation to criminal matters, they were matters at the time, in 2006, that were criminal and attracted a penalty, but they have fallen through the cracks as a result of omissions. It is not as if we are creating something new that people were not aware of. The truth is that it is important.

Why I say I have no problems with its legality is that the High Court in Polyukhovich v the Commonwealth allowed such provisions. That is why we were able at one stage to pass laws in relation to war criminals and acts committed 30 and 40 years before the legislation went through the parliament—because it was directed not at particular individuals but in a generic sense at conduct that was deemed to be heinous and worthy of legislating so it could be put on the criminal statute books.

I want to finish this contribution in a similar way to how I commenced it. I am very happy that the Minister for Home Affairs came to this parliament from the state parliament, because he brings with him a wealth of knowledge that will enrich the ministry of the present government and a steadiness that we can all be comfortable with because he has got a track record. I think too often we do not acknowledge that, and I wanted to do that on the occasion of the first piece of legislation he has introduced. He is very affectionately regarded in New South Wales. His electoral record speaks for itself: having lost his seat, he subsequently regained it and, in effect, assisted the re-election of a Labor government in a seat and in an area that is not an easy one for the Labor Party. Although I do not want to bring you into the political process, Deputy Speaker Schultz, you yourself are one of the few members that previously—I do not necessarily know about now—when you were a bit younger and fitter and more active, could have got themselves elected to this place as an Independent, without the badge of a political party, and that is on the basis of the affection in which your community held you and the work that you did for your community.

In relation to the Minister for Home Affairs, I do look forward to his considered views on a whole range of legislation that will come before this House in this term of parliament and in the life of this parliament, and I am very ‘relaxed and comfortable’, to use someone else’s phrase, that he is here and that he has carriage of what are sensitive matters, because I know he will bring a balanced view. He is not a hanger and flogger; he does not take an extreme position on one side or the other. He brings in thoughtful legislation that is needed within our community. So I do commend the bill before us to the House.

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