Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I speak in support of the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. As the member for Sturt said, this bill contains three minor but necessary amendments to ensure that Commonwealth criminal law legislation is accurately kept up to date. While the provisions in this bill are really quite practical in nature, they seek to remedy defects and anomalies that presently exist in Commonwealth criminal law. The bill addresses these matters to make it easier to administer the criminal justice system. The bill is in response to the Rudd government’s position that criminal law should be responsive to the needs of the Australian community. As the Minister for Home Affairs stated in his second reading speech, the Rudd government looks forward to bringing many more criminal law bills before the parliament, particularly in relation to introducing a victims’ rights package and federal sentencing reforms.

The Rudd government believes that these amendments, though minor, require attention as a matter of priority. The object of this omnibus bill is to make a number of miscellaneous amendments in relation to the Australian Federal Police Act 1979, the Crimes Act 1914 and the Crimes (Aviation) Act 1991. While the amendments are important, it is not appropriate that they be dealt with in individual amending bills; it is appropriate that they be dealt with together. The three amendments in the bill retrospectively reinsert the penalty for the secrecy offence in section 60A(2) of the Australian Federal Police Act 1979, defer the second review of part ID of the Crimes Act 1914 until November 2009 and amend the Crimes (Aviation) Act 1991 to ensure that standard criminal offences apply on relevant flights.

The first amendment in this bill is in relation to reinserting the penalty for the secrecy offence. Essentially, the bill seeks to amend the Australian Federal Police Act 1979 to reinsert the two-year maximum penalty for the secrecy offence. It is pertinent to note that the amendment does not alter the elements of the offence; it simply reinserts the penalty that was previously stipulated in the provision. This penalty was mistakenly repealed in 2006 by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. Under the proposed amendment, the re-enactment of this penalty is backdated to the date when the penalty was inadvertently repealed. It is appropriate that the commencement of this amendment is retrospectively dated. If the government did not take this action, we would be in a position whereby individuals who committed offences in the period after the penalty was repealed in 2006 and were found guilty would otherwise be able to escape punishment. The purpose of this amendment is to guarantee that, if someone is found guilty of an offence under the secrecy provisions, they will be subject to an appropriate penalty under the law. I believe that the idea that someone can commit an offence and then escape penalty is simply wrong. It is at odds with what the public would find acceptable. Consequently, I believe that there will be strong support for an amendment of this nature to correct this error and improve our criminal justice and legal systems. I think that the community would expect no less. The community wants us to be tough not just on the causes of crime but also on crime itself, and I agree with the sentiment of the community.

The second amendment in this bill relates to deferring the review of part ID of the Crimes Act 1914. This part of the Crimes Act deals with the collection and use of DNA material by Commonwealth law enforcement agencies. It also sets up a national crime investigation DNA database as a platform to facilitate the matching of DNA profiles across Australian jurisdictions. The bill seeks to amend section 23YV of the Crimes Act to remove the requirement that the second review of part ID be held within two years of the completion of the first review. The review was due in March 2005 but, at that time, the database was only partially operational. The March 2005 review was scheduled to focus on the operation of the national criminal investigation DNA database and the implementation of the recommendations from the first report. It is the view of the Rudd government that, under the circumstances, it is only appropriate that the review be deferred. This is principally because of the operation of the database, which was supposed to be the major focus of the review. There was really not enough relevant information and experience, and it would have resulted in a waste of taxpayers’ resources if there had not been a deferment. The amendment will require the review to commence no later than 1 November 2009. By this stage, there will be a body of experience with investigations and prosecutions drawn on matches in the database. This will allow the government to convene a multi-agency team with relevant information and experience to conduct the review.

The third area of amendment in the bill relates to the Crimes (Aviation) Act 1991. It governs crimes and other acts committed on aircrafts and in airports and related facilities. Currently under section 15 of the Crimes (Aviation) Act 1991 there are standard criminal offences which still apply to flights commencing or finishing in Australia and to Australian aircraft in flight outside Australia. For example, if a murder, sexual assault, theft or anything of that nature occurred on a plane in flight, the crime would still be recognised as an offence under the law and the offender would be charged. In the past this was recognised by applying the ACT Crimes Act 1900. The trouble is that criminal offences under that act have in the main been moved to the ACT Criminal Code 2002. Only offences contained in the ACT Crimes Act 1900 apply to flights; those in the ACT Criminal Code 2002 do not. The amendments will ensure that the offences that were moved from the ACT Crimes Act to the ACT Criminal Code will now apply to those flights.

The amendments will further allow future changes in criminal law to be applied to flights through the use of regulation-making powers to update the cross-reference to ACT law. The amendment introducing a regulation-making power into section 15 of the Crimes (Aviation) Act is an important reform because it will ensure that the law remains contemporaneous and accurate. It will provide flexibility in the event of future changes to the ACT Criminal Code.

This is quite an omnibus bill, but when I look at it it strikes me that Australian criminal law really refers to criminal law of several jurisdictions. When I was a practising lawyer I did a lot of criminal law when I first started. Australian criminal law originated from English common law and continued to evolve over many years. Because of the oddities and eccentricities of Australian federalism, we have common-law jurisdictions and code jurisdictions. Effectively, New South Wales, South Australia and Victoria are common-law jurisdictions. A litany of legislation and judicial decisions effectively make up the body of law in those states.

I believe that I come from the best state in the country and I believe that I come from the best state when it comes to criminal law because we have a criminal code. That criminal code has been in operation for a long time—since 1899. That has been the primary instrument of criminal law in Queensland. That was largely based on the English draft bill of 1880 and the penal code of New York in 1881 and it borrowed from the Italian penal code as well. It is a great body of law. We have had a wonderful jurist in Sir Samuel Walker Griffith, who was the Chief Justice of the Supreme Court of Queensland and a former Premier. He was really the author and architect of that legislation.

I am not saying that Queensland has been fossilised in the past. Queensland criminal law has moved over time and it has grown. It has been subject to further legislative revision, judicial interpretation and precedent, as anyone who practises criminal law in Queensland knows. It strikes me that we should offer our wonderful criminal code in Queensland to the other states. It is about time that the other states had the benefit of a wonderful criminal code like Queensland has.

The Standing Committee of Attorneys-General has looked at the idea of a national model criminal code for a long time. It has been on the agenda for both sides of politics, but really it has not advanced very far. On 28 June 1990 the Standing Committee of Attorneys-General placed the development of a national model criminal code for Australian jurisdictions on its agenda. It established a committee comprising an officer from every jurisdiction with expertise in criminal law and criminal justice matters to look into the issue. The committee was originally known as the Criminal Law Officers Committee but in November 1993, which seems such a long time ago, it was renamed the Model Criminal Code Officers Committee—I am not sure who comes up with these wonderful names; someone must sit around thinking up these names. The first formal meeting of that committee took place in May 1991. In July 1992 the committee released a draft discussion of the general principles of criminal responsibility. It delivered its final report in December 1992. With the exception of the general principles relating to intoxicated defendants, the recommendations in that final report formed the basis for the Commonwealth Criminal Code Bill 1994, which was passed by the Commonwealth parliament in 1995.

It is about time we adopted a national approach so we do not have myriad omnibus bills coming through this legislature. I think it is time we really looked at this. In 1994 we had both the Commonwealth government and the state and territory premiers leaders forum endorse a model criminal code, but that was in 1994 and it is now 2008. I know there have been discussion papers and various reports released, but I urge the Minister for Home Affairs to really look at this and take this forward. I think we could enjoy the benefit of uniformity. We have achieved uniformity in a number of areas—defamation law, Corporations Law and family law. The dingo fence does not exist between New South Wales and Queensland anymore. We really need to look at a more national approach when it comes to criminal law. I have taken this opportunity to speak to this aspect and I encourage the minister to have a look at this, look at the Model Criminal Code, take the best of the Queensland system—because we believe we have the best—and really advance this area.

In conclusion, these three amendments are quite minor but necessary to ensure that the Commonwealth criminal law legislation is contemporaneous. Prima facie, the provisions are quite practical in nature but I think they are critical to ensure that our criminal law system can be administered properly. We can always undertake reform—and this is a reformist government—and I urge further reform on the minister.

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