Wednesday, 19 August 2015
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; In Committee
As senators will see on the running sheet, this amendment is identical to opposition amendment (1) on sheet 7743. So obviously we support this amendment. As indicated in my second reading contribution, not only has the government failed to engage with stakeholders with regard to these amendments but also it has failed to justify the need for an additional form of secondary criminal liability to apply to all offences in the Criminal Code. We have heard some arguments about particular matters, particular issues or about certain areas but nothing that justifies the blanket application of this vague legal concept, we have been told, with respect to 'knowingly concerned'. The government has highlighted particular categories offence where the concept of 'knowingly concerned' is required including drug and drug importation offences and insider trading of fences. However, all of the offences identified have already been drafted in a way that address the concerns raised without the need to include 'knowingly concerned'.
Labor believes that the proposed change in relation to the introduction of 'knowingly concerned' is a major change to the Criminal Code and that, as such, there is a process that needs to be followed. Leading up to the adoption of the Model Criminal Code in 1995 there was a long consultation. The consultation occupied some years and included some of Australia's leading criminal practitioners. There ought to be a full consultation in relation to any proposed general change to the Model Criminal Code. As the Australian Human Rights Commission noted in its submission to the Senate committee:
… it is difficult to anticipate the impact of extending this form of liability to all offences.
Labor does not oppose the introduction of the element of 'knowingly concerned' in relation to individual offences in appropriate cases. Indeed, this has already occurred in relation to a number of offences in Commonwealth legislation. We would suggest that the government proceed with that approach, rather than an attempt at a blanket change without consultation and with processes that are appropriate to the Model Criminal Code.