David Johnston (WA, Liberal Party) Share this | Hansard source

I also speak to Senator Robert Ray’s motion. This explanatory memorandum is probably one of the most appalling I have ever seen in the short time I have been in the Senate. It discloses no motivation, no reasoning and no justification for some of the most draconian powers that this parliament can conceivably and possibly enact: rights of search and seizure without warrant and rights of personal frisking without warrant. This is under the umbrella of a piece of environmental protection legislation, the Environment and Heritage Legislation Amendment Bill (No. 1) 2006. The draftsman discloses an obliviousness to the conventions, formalities, reports and guidelines that have been laid down over a very long period of time with respect to the propriety of the administration of powers and penalties. We have some 31 strict liability offences carrying penalties of up to seven years imprisonment. Again, under the umbrella of an environmental protection act, I find that very interesting, particularly in the face of the explanatory memorandum disclosing no real reason or explanation for that.

In the very brief time that I have—and I do not want to take up too much time on this—can I say that the 2004 guide called A guide to framing Commonwealth offences, civil penalties and enforcement powers, as set out by Senator Ray, has simply been ignored. It makes me wonder whether the departmental draftsman is aware of this provision. Further to that, on the committee’s sixth report of 2002, as cited by Senator Ray, Application of absolute and strict liability offences in Commonwealth legislation, again I would say the same thing: the draftsman is oblivious to this document, which is apparent on the face of the style and import of the terms and clauses contained within this piece of legislation.

Strict liability offences are throughout the proposed act. The commencement date is contingent on a number of pieces of state legislation, which causes me concern. There is the abrogation of the privilege against self-incrimination by inserting a new section 486J into the Environment Protection and Biodiversity Conservation Act. Again, these are at the pinnacle of the exercise of Commonwealth legislative power and, again, under the umbrella of an environmental protection act, with no explanation. I really do not want to go on, other than to say that I think this legislation should go back to the drawing board.