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

The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 was introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. That bill provides for the criminalisation of cartel conduct, including penalties of up to 10 years imprisonment, and will necessitate the creation of an indictable criminal jurisdiction in the Federal Court for the trial of offenders. Other Commonwealth offences are heard in the state and territory courts. The Federal Court is to be invested with this jurisdiction because of its extensive experience with civil and quasi-criminal cartel cases under the Trade Practices Act. However, I understand that, where prosecutions involve offences under both the cartel provisions and state and territory law, or other Commonwealth offences to which this bill does not apply, state and territory superior courts will be able to hear those matters without the offences being disjoined.

The amendments proposed in this bill provide for the complex procedural framework required by the new jurisdiction, including the form of indictments, entry of pleas, bail, pre-trial proceedings, empanelment of juries, conduct of trials, sentencing and appeals. The procedural provisions have been modelled upon existing state and territory provisions and will apply in all Federal Court trials regardless of where the trial is being conducted. For the sake of consistency, in this area of the law at least, this is preferable to applying the procedural and evidentiary provisions of the state or territory in which the proceeding is being conducted.

While the criminalisation of serious cartel conduct, and the creation of the framework to deal with it, has the opposition’s support, we have serious reservations about two aspects of this bill. The first of these concerns the accused person’s right to silence. Proposed section 23CF requires an accused who takes issue with a fact, matter or circumstance disclosed in the prosecution’s case to state the basis for doing so. This may compromise the accused person’s right to silence. The justification stated in the explanatory memorandum is that this will permit the court to narrow the issues to be dealt with at trial. However, in the opposition’s view, efficiency is not an adequate justification for disposing with age-old rights, especially such important human rights as the right of an accused person to remain silent. Alternatives exist, using examples from other Australian jurisdiction. A provision such as that applicable in New South Wales could be adopted, which allows such a procedure unless it will cause prejudice to the defence. Alternatively, there should be no adverse consequences flowing from the accused person’s non-disclosure, as is the practice in Victoria.

The second issue which concerns the opposition is the presumption in favour of bail, which has also existed under our law since ancient times. The proposed section 58DA provides that, if the court refuses to grant bail, the accused cannot make a subsequent application unless there has been a significant change of circumstances. This is a more onerous provision than the bail provisions applying in any other Australian jurisdiction. Proposed section 58DB is also silent as to whether there is any presumption in favour of bail. In other jurisdictions there generally is a presumption in favour of bail, except in certain defined circumstances. There is also no provision in this bill for the court to provide reasons for refusing bail.

The right to silence and the presumption in favour of bail are among the individual human rights recognised and protected by our common law for centuries. For a government such as this one, which paints itself as having a human rights focus, it is curious, to say the least, that its first attempt at a federal criminal jurisdiction would sweep away rights recognised since Magna Carta.

The bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs on 4 December 2008 for inquiry and report by 20 February 2009. Submissions were received from, among others, the Attorney-General of New South Wales, the Law Council of Australia, the Law Institute of Victoria and the Criminal Bar Association of Victoria. The submissions were highly critical of the provisions I have mentioned, and the committee’s report and recommendations reflect those concerns.

I am pleased to see, therefore, that the government has responded appropriately by circulating amendments on sheet PM308. The amendments relatively provide that the pre-disclosure obligations of the accused are limited to alibi or impairment defences—the same as is required in state criminal jurisdictions—and only the general basis upon which an accused takes issue with a fact or matter in the prosecution’s case. This will not entail an obligation to disclose the details or evidentiary basis of any aspect of the defence.

The situation in respect of claims to legal professional privilege under the disclosure regime has also been clarified to ensure that this vital safeguard is not compromised. The sanctions in respect of non-compliance with the pre-trial disclosure regime will also change to provide for these to be a matter of the court’s discretion rather than for mandatory sanctions to apply. Finally, the bail provisions will be amended to provide for a presumption in favour of bail and to relax the circumstances in which further bail applications can be made.

Those amendments will have the coalition’s support—indeed, it is at the coalition’s urging that the government has agreed to make them. They adequately address our concerns. Subject to the amendments being approved by the Senate, the coalition supports the bill.

Debate interrupted.