Shayne Neumann (Blair, Australian Labor Party) Share 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)

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