Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I thank all members for their contribution to the debate on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008, with the member for Lyne just concluding. This bill is the product of extensive consultation with key stakeholders around Australia. The procedural provisions are based on the best features of existing state and territory law and will allow the Federal Court to apply consistent criminal trial procedures regardless of where the trial is held. With that in mind, I would like to respond to some of the matters raised in today’s debate. In particular, I would like to address a number of concerns raised by the opposition through, in particular, the member for Farrer—very sincerely raised, I acknowledge. The member for Farrer has suggested that the pretrial disclosure provisions abrogate the ancient right of silence of a defendant in our criminal system. These measures, contained in the current bill, are not unprecedented. The provision in question—proposed section 23CF—closely follows the Victorian provisions. Those provisions include the requirement that, if the accused takes issue with the prosecution’s case, the accused must state the basis for taking issue. The aim is to ensure that an accused person provides a meaningful response to the outline of the prosecution case. The clause will not require them to disclose their defence.

The Law Council of Australia has noted that the courts and the practitioners in Victoria have found ways of operating under the Victorian provisions which do not require the accused to disclose their defence, and that is what we are aiming at in this current legislation. We are aiming, with these provisions, to achieve those arrangements, and to formalise those arrangements, at the Commonwealth level. One person who is eminently qualified to comment on this legislation is Justice Mark Weinberg. Justice Weinberg is currently a judge of the Victorian Court of Appeal. He was formerly a judge of the Federal Court of Australia and, prior to that, he practised in criminal law, civil law and administrative law at the bar as well as serving for a period of time as the Commonwealth Director of Public Prosecutions. In addition, from the academic side of analysing the law, he was the Dean of the Faculty of Law at the University of Melbourne. As a result, we believe he is eminently qualified to comment on the development of the criminal law and in particular the Federal Court’s role in that development.

In evidence to the Senate Standing Committee on Legal and Constitutional Affairs last week he indicated his support for the legislation and he rejected any notion that the pretrial disclosure regime was in any way unfair to the accused. His Honour said:

I have no difficulty with the proposition that the defence, in a case of this kind, should be expected to indicate in broad terms—

and I underline that—

the areas that are not in dispute and the areas that are in dispute, and, if they are in dispute, the general basis of why that is so. I do not regard that, in this day and age, as being in any way antithetical to the conduct of a fair trial or in violation of any notion of the right to silence or any of the more traditional reasons why it is thought that the accused should simply be entitled to put the Crown to its proof.

His Honour’s reference to ‘this day and age’ refers to the incredible complexity of running criminal cases involving corporations and the demand on the public purse and court’s time if frivolous, vexatious or unreasonable points are taken by a litigant in any proceedings and I think, with respect to His Honour, that that is what he was having regard to in commenting about the contemporary context of proceeding in a case such as this. And again, as His Honour indicated in his submission, the Crown will, under these provisions, still bear the onus of proving its case against an accused.

In relation to the comments of the member for Farrer about the absence of a presumption for bail, I note the bail provisions of the bill will apply only to the serious cartel offences heard in the Federal Court. It should be left to the Federal Court to balance competing factors and to make a decision that takes into account all the circumstances of the case when considering a bail application. Having made these points, and in fairness to the argument of the member for Farrer, I note that both these matters are currently being considered by the Senate Standing Committee on Legal and Constitutional Affairs, which is reviewing the bill; I will certainly carefully consider the committee’s recommendations in terms of any final amendments that may be considered.

The bill sets up the procedural framework to ensure that the Federal Court can exercise its new criminal cartel jurisdiction to be given under the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008—the bill that actually establishes the criminal offence. This will be the first time that the Federal Court of Australia will have jurisdiction in respect to indictable Commonwealth offences. It is the government’s belief that these matters are too serious to be left to a summary jurisdiction and certainly too serious to be left to a regime that applies only a civil penalty, and that is why we are establishing this indictable criminal jurisdiction to deal with what we believe are very serious offences. The jurisdiction in the Federal Court will be concurrent with the state and territory Supreme Courts. This will ensure a high degree of flexibility to ensure that cartel cases can be prosecuted in the most appropriate court, but it will ensure a central role for the Federal Court in developing a nationally consistent set of principles in these areas—a matter mentioned by the member for Lyne, who mentioned the risk of developing eight different outcomes around this central cartel offences law.

The Federal Court has developed extensive experience with respect to cartel conduct in the civil jurisdiction as a result of dealing with cartel cases. It makes sense for the Federal Court to be able to apply its existing expertise in that area to criminal cartel conduct as well. The Federal Court has extensive experience in dealing with complicated economic concepts in the field of competition law, and the Federal Court has been responsible for developing jurisprudence in the field—and it has been a jurisprudence that has developed a real specialty both from the point of view of practitioners and from the point of view of the court. State Supreme Courts, we believe, simply do not have that same level of experience. I note a recent media report which raised questions about why this jurisdiction is not being given exclusively to state and territory courts, which have traditionally dealt with criminal matters, including, it must be acknowledged, federal criminal matters. In response, I would say that it should be pointed out that a number of the judges of the Federal Court presided over many criminal trials and criminal appeals when they were judges of the state Supreme Courts, and other federal judges routinely preside over criminal cases in their capacities as additional judges of the Supreme Court of the Australian Capital Territory and the Northern Territory. The court itself has experience in dealing with state and territory corrective service organisations and agencies as a result of conducting its general jurisdiction.

In summary, this bill will give the court the full range of powers needed to run a criminal trial, from pretrial proceedings through to bail, empanelling juries, conducting trials and hearing appeals. The government is equally determined to be tough on crime, whether that crime occurs on the streets of our suburbs or in the boardrooms of our corporations. I note the member for Lyne described this cartel conduct as amounting to theft, fraud and criminal behaviour. He is absolutely right, and these two bills are intended to deal with those measures. We believe this is a major initiative in law enforcement against corporate crime and I commend this bill to the House.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.

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