Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 - Second Reading


Senator IAN MACDONALD (Queensland) (18:42): The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 is another bill by the coalition government designed to protect Australians, to make it as reasonable as possible for there to be convictions of a number of offences which currently go unchallenged because of the complexity of the law. Sure, I heard previous speakers and I heard evidence that there are some concerns about some infringements of human rights and personal liberties but in Australia at the moment the greater concern is that we have to keep all Australians safe and we have to give our law enforcement and our protection agencies every opportunity of being able to compete with those who would wish to harm Australians.

While I understand why the government has proceeded with this bill, I regret that other political parties—and you have heard from some of them in this debate—do not have the same commitment to keeping Australians safe. There is always the concern about the rights of the accused. Rarely do we hear the same concerns about the rights of the victims or the rights of every Australian to live their life peacefully.

I chaired the Legal and Constitutional Affairs Legislation Committee, which held an inquiry into this matter. We had a number of submissions and I thank those who took the time to put some serious effort into the submissions they made. I do appreciate that and thank them on behalf of the committee. The committee held a public hearing in Sydney on 20 May and a number of witnesses appeared. I thank those witnesses for their assistance to the committee in considering what is accepted to be a quite complex bill.

Again I repeat that this bill is all about giving our enforcement agencies and our protection agencies every opportunity to discharge their duties in keeping Australians safe. I would point out that organised criminals, gangs, terrorists and would-be terrorists do not have to abide by the same rules and regulations that enforcement agencies, protection agencies and prosecution agencies have to abide by. They know no rules. They can do what they like. They can breach every rule known to Australians or to humanity, and they have no qualms or restraints in doing that. That is why it is essential that we give our agencies every opportunity to keep Australians safe.

Other speakers have gone through at some length what is in the bill. I will not take the time of the Senate by repeating those comments, but as committee chair I do want to thank those who made detailed submissions to the inquiry. We have considered the concerns raised by submitters, particularly relating to schedules 1, 5 and 6 of the bill. While the committee understood that some of these provisions may have some impact on individuals' freedoms and liberties, the committee acknowledged that the first priority is to keep our nation safe. Events earlier this year, such as the Martin Place siege, have deeply affected the committee and have demonstrated that stronger laws to protect the community are needed.

The committee noted the findings of the Australian Crime Commission in its Organised crime in Australia 2015 report which demonstrate that 'organised criminal gangs represent an ongoing threat to this country' and are relying on new technologies to escape prosecution. The law must keep pace with modern technology and the way in which criminals operate. The committee noted that the majority of provisions contained in the bill have been drafted at the request of the Commonwealth Director of Public Prosecutions. The committee agreed that the passage of the bill would remove impediments currently faced by the Commonwealth DPP when prosecuting offenders for serious crimes. The proposed amendments would ensure that offenders are no longer being charged with offences that do not reflect their true level of criminality. The committee was of the view that overall both the minister and the department had provided sufficient justification for the measures contained in this bill, and the committee consequently recommended that the bill be passed.

As well as recommending that the bill be passed, the committee indicated that it thought that the Commonwealth, state and territory governments should consider reviewing underage sex offences to ensure that there is consistency with the federal offences of forced marriage. As other speakers have said, the issue of forced marriage was very prominent in the submissions made to the committee in relation to that aspect of this bill. The committee agreed that the amendments proposed would result in additional protection for children and persons with a disability who do not have the capacity to consent to marriage. The committee was persuaded by the evidence of the Law Council of Australia that it would be beneficial for the government to conduct a review of other underage sex offences that may accompany a forced marriage offence. This would ensure that, where the prosecution brings charges for forced marriage and underage sex offences, the same onus of proof would apply to all charges—hence the second recommendation of the committee. I certainly hope that the Commonwealth government will institute those reviews with state and territory governments to ensure there is some consistency with the federal offences of forced marriage.

In relation to the issue of mandatory minimum sentences, the committee, while noting concerns raised by a number of submitters—some of which have been repeated in this debate—believed that the government had introduced sufficient safeguards to ensure that no injustices resulted. Further, as identified by the Australian Human Rights Commission, there is a safeguard afforded by section 8 of the Director of Public Prosecutions Act 1983, which empowers the Attorney-General to issue directions or guidelines to the Commonwealth Director of Public Prosecutions which 'relate to the circumstances in which the director should institute or carry on prosecutions for offences'. The committee is aware that past Attorneys-General have issued section 8 directives in relation to the application of mandatory minimum sentencing.

The committee was concerned about the apparent lack of consultation between the government and stakeholders prior to the drafting of the bill. The committee is of the view that, due to the technical nature of the amendments proposed in this bill and the number of schedules, it would have been beneficial had the government engaged in a consultation process with stakeholders and state and territory DPPs. For example, evidence from the Attorney-General's Department that the amendments would be welcomed by its state and territory counterparts was at odds with submissions from both the NSW and Victorian DPPs raising concerns over the amendments in schedule 9 of the bill. The Law Council of Australia also advised the committee that, whilst it had met with the department, it had not been consulted on the explicit amendments in the bill.

The committee was of the firm view that there was value in government consulting with relevant stakeholders during the development of the proposed legislation. The committee thought that some prior consultation with relevant stakeholders would assist the government in getting the drafting right and would perhaps pre-empt some objections that may have been made to the bill. The committee cannot understand why the government does not, as a matter of course, do that. This was raised with the department. We would certainly urge that, in the future, particularly in relation to complex bills of a legal nature, the department consult with relevant stakeholders, not so much on the themes or the end result they want but on how best to achieve that, and that they use the expertise that is available amongst the stakeholders to make sure that the legislation is as it is meant to be. The committee welcomed the suggestion from the Law Council that, in future, consultations could be undertaken by the relevant department or the Law, Crime and Community Safety Council.

Having thoroughly and carefully considered all aspects of this bill, the committee did recommend that it be passed, subject to the condition I mentioned. Can I conclude where I started. This bill is not about making things tough for Australian agencies, border protection forces, police and prosecutors; it is about giving them an equal chance—a chance that is at least equal to the criminals, the terrorists and law-breakers that they are charged with apprehending. It is about giving our police and enforcement agencies the same opportunities to arrest and convict those who would harm our fellow Australians.

This bill is another in a series by the Abbott government that will ensure that Australians are kept safe. I can guarantee members of the Senate, and they will know from their own experiences, that that is what most Australians expect and want from their federal government. They are not terribly interested in the niceties of some of the erudite legal arguments that have been raised in this debate. What Australians want to know is that their government is doing everything possible to protect the personal safety of themselves and their families. On that basis, this bill does go towards that end. It is appropriate and, as the committee recommended, it should be passed.

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