George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The Law and Justice (Cross Border and Other Amendments) Bill 2009 contains a range of measures relating to legal proceedings with a domestic cross-border element. Its reach also extends to New Zealand. Disputes having a connection with different states are governed by the Service and Execution of Process Act 1992. Australia also has a cooperative scheme with New Zealand for the service of subpoenae under the Evidence and Procedure (New Zealand) Act 1994. The amendments proposed by this bill are intended to provide some additional flexibility and to broaden the coverage of the existing regime.

Firstly, the bill seeks to amend the Service and Execution of Process Act to support the Cross Border Justice Scheme. This scheme is a joint initiative of the Western Australian, South Australian and Northern Territory governments and will apply initially to the border region Ngaanyatjarra Pitjantjatjara Yankunytjatjara—or NPY—Lands in the central desert. This will allow criminal justice officials to deal with offenders from any of the participating jurisdictions, provided the offender has some connection with the region. This scheme operates under both state and Territory law, but the amendments to the Service and Execution of Process Act are necessary to ensure that the act does not override those arrangements.

Secondly, the bill seeks to amend the Service and Execution of Process Act to clarify that prisoners subpoenaed to give evidence in interstate proceedings may give evidence by audio or audiovisual link with the approval of the court. Finally, the bill seeks to amend the Evidence and Procedure (New Zealand) Act to include family law proceedings in the scheme relating to the services of subpoena between Australia and New Zealand. Family law proceedings were previously excluded at New Zealand’s request, but the New Zealand government has now passed amendments providing for their inclusion.

The latter two proposals seem to the coalition to be eminently sensible and have our support. The first proposal, that relating to the policing of the central desert region, also has the coalition’s support, but it needs to be noted that the scheme to which it applies, which is principally the responsibility of the state and Territory governments concerned, has attracted some criticism. Liberal senators on the Senate Standing Committee on Legal and Constitutional Affairs, which reported on this bill on 12 May, expressed some discomfort with elements of the scheme. They noted the submission of the Aboriginal Legal Rights Movement that, amongst other things, the scheme is complex, has resource implications for legal aid commissions and for Aboriginal and Torres Strait Islanders Legal Services, has the potential to encourage forum shopping on the part of the police and has a retrospective effect. They also noted, however, these are not matters which are within the remit of this particular bill.

The need for this bill is simply to ensure that the provisions of the Service and Execution of Process Act do not override the operation of the scheme. The challenges of maintaining law and order in the central desert region are very real. The fact that the region straddles three jurisdictions can only complicate matters. Any problems with the scheme are for those jurisdictions to iron out. To the extent that the Commonwealth can lessen that burden, it ought to do so. The coalition supports the bill.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the same bill, and will express some of the same concerns just raised by Senator Brandis because the Australian Greens have taken a broadly similar position. We will not be moving any amendments to this bill; we are also happy to leave it non-controversial, but I do want to make a couple of comments.

As Senator Brandis has outlined, the bill establishes a cross-border scheme between three different states which applies to the region known as the NPY Lands, covering a very large portion of Central Australia. It does not only relate to that area, and that is something that is worth pointing out. Evidence provided in the committee hearings by the Attorney-General’s Department identified for us that it generally enables state and Territory laws to operate across borders, extending the geographical area in which each jurisdiction applies, across the board to any part of Australia. So while the drafting and the timing of the bill is clearly intended to harmonise these legal processes through Central Australia, in fact there is nothing in the bill that would prevent it from applying right across the country.

State and Territory laws to allow and enable this cross-border cooperation have already been passed in WA, South Australia and the Territory. The Commonwealth bill is intended to disapply the Service and Execution of Process Act, or SEPA, if there is overlap with the states and Territory legislation. Our understanding is that this is intended to remove any complications when allowing judicial officers from any of the state jurisdictions to deal with offenders from other participating jurisdictions, provided that the offence is suspected to have taken place in the region or if the offender was arrested in the region or the offender ordinarily resides in the region. Prisoners will also be able to give evidence by audiovisual link-ups before an interstate court, authority or tribunal. There are some pluses and minuses to this. In some cases it is extremely desirable to avoid transport of prisoners across long distances. This has recently resulted in a tragedy in Western Australia when a prisoner died in transit between regional Western Australia and the city. So in some cases it is appropriate for more and easier audiovisual link-ups to be held in these matters. But also, it is potentially disadvantaging some of the people who are being prosecuted for these crimes if they are removed from the people who will be trying them.

Several submissions to the committee inquiry raised relevant and pertinent issues about how the cross-border jurisdictional laws between WA, South Australia and the Territory are actually occurring in practice over the Aboriginal people of the area. The reason I wanted to make this contribution is that in some sense their evidence and their points of view were set aside during the process of hearings, for the reason that Senator Brandis outlined—that is, they are not directly relevant to the drafting of this bill. But this bill is enabling and encouraging, from the Commonwealth’s point of view, a system that in some cases is working exceptionally poorly. I do not think it is good enough for us to say, ‘Well, that’s for the states and Territory to sort out,’ when we are playing this role and legislating in this place to make that system mesh more harmoniously. So I just wanted to put a couple of points on the record that were made to the committee on the way through in some extremely valuable submissions.

People working directly in the field of Aboriginal legal rights pointed out to us that Indigenous Australians are 13 times more likely to end up in jail than the rest of the population. That is according to an Australian National Council on Drugs report issued in June. Almost one-quarter of the male prisoners in this country are Aboriginal people. Almost one-third of female prisoners are Aboriginal women. Half of the juvenile detainees are Aboriginal. The likelihood of arrest is about 20 times greater for Aboriginal Australians than it is for non-Aboriginal Australians. This is a group of people who make up between two and three per cent of the population; these numbers are skewed vastly out of proportion! The rate of Indigenous imprisonment has almost doubled since the Royal Commission into Aboriginal Deaths in Custody. That is absolutely damning: the government took evidence from people right around the country, who took an enormous amount of time and trouble to tell their stories and to put the evidence on the table, but since that royal commission report was handed down the rate of Indigenous imprisonment has doubled. That is an indictment on our whole country. Eighty-three per cent inmates in the Northern Territory are Aboriginal people; in Western Australia it is 41 per cent.

As was evident, and I hope fairly clear, in my additional comments to the committee’s inquiry report on this bill, some of the issues raised by organisations dealing with the implications of the cross-border arrangements for Aboriginal legal rights were dismissed. The reason, we were told, is that this Commonwealth bill was not the cause of the problems; rather, the state legislation was to blame. Of course, I understand the jurisdictional issues, and Senator Brandis has just outlined that the coalition does as well. But when the Commonwealth is facilitating legal processes between states, which is what this bill does, and we have such a crisis in Aboriginal communities when it comes to law and justice, it is appropriate to take the time to recognise the reality created by the laws and police practices as they are actually occurring.

The access to justice inquiry currently being conducted by the Senate Legal and Constitutional Affairs References Committee is revealing enormous barriers to justice for Aboriginal people. A lot of the evidence we are taking relates directly to this bill. So I hope some of the concerns raised in the course of the inquiry into this bill can be heard at the access to justice inquiry and make their way at last into government policy.

The system is effectively broken when it comes to Aboriginal people and law and justice. So much more needs fixing, beyond throwing in more police and enabling more court cases and video link-ups. That simply puts more Aboriginal people in jail. It is time that we started to look at some of the root causes of the catastrophic oversentencing and jailing of Aboriginal people in this country.

Nick Sherry (Tasmania, Australian Labor Party, Assistant Treasurer) Share this | Link to this | Hansard source

Firstly, I want to thank Senator Brandis and Senator Ludlam for their contributions. The Law and Justice (Cross Border and Other Amendments) Bill 2009 comprises a range of amendments to simplify cross-border litigation. Most significantly, the bill includes amendments to support the operation of the cross-border justice system. Once operational, the scheme will make the delivery of justice services in the NPY Lands simpler and quicker. It will enable police, magistrates and other officials to deal with offenders from any of the participating jurisdictions in cases where the offender has a connection to the cross-border region.

The amendments in this bill will confirm that state and territory laws establish this scheme and have primacy over any inconsistent arrangements in the Commonwealth’s Service and Execution of Process Act 1992. The bill also includes amendments to conform the capacity of a prisoner in one Australian state or territory to give evidence by audio or audiovisual link in proceedings in another and it extends the range of subpoenas that can be served in civil proceedings between Australia and New Zealand.

The amendments in this bill will make the process for resolving legal disputes with an interstate or trans-Tasman connection simpler, quicker, cheaper and more flexible. This is consistent with the government’s broader efforts to improve access to justice for all Australians. Once again, I thank Senator Ludlam and Senator Brandis for their support and I thank all those involved in the work in support of this important reform.

Question agreed to.

Bill read a second time.