Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Labor supports the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017. A bill that proscribes false representations that a person is, or is acting on behalf of, a Commonwealth body is a necessary addition to the laws of the Commonwealth. This bill, which introduces two offences into the Criminal Code Act 1995 for persons who engage in conduct which results in a representation that a person is, or is acting on behalf of, a Commonwealth body, is a near mirror provision to the existing protections relating to impersonating a Commonwealth officer. The Labor Party supports legislation designed to proscribe unacceptable and false representations that a person is, or is acting on behalf of, a Commonwealth body. We've seen the damaging effect of falsehoods disseminated in election campaigns in recent years, and we strongly support measures that are designed to ensure that the Australian people have safeguards which protect the truthfulness of the information that's provided to them when they're deciding who their elected representatives will be.

There is in this bill both a primary offence and an aggravated offence. The primary offence in proposed section 150.1(1) provides that a person commits an offence if they engage in conduct which results in, or is reasonably capable of resulting in, a representation that the person is a Commonwealth body or is acting on behalf of, or with the authority of, a Commonwealth body. Though this offence does not set out a specific fault element, section 5.4 of the Criminal Code sets out that the fault elements will require that the person intends the conduct or that they are reckless as to whether or not the conduct will result in, or is reasonably capable of resulting in, a relevant false representation. The aggravated offence in proposed section 150.1(2) contains the same elements as the primary offence but also requires that the person engages in the conduct with the intention of (1) obtaining a gain, (2) causing a loss or (3) influencing the exercise of a public duty or function. The penalties for these offences range between a maximum of two years imprisonment for the primary offence and a maximum of five years for the aggravated offence. Further, conduct coming within the scope of one or both of the offences may be the subject of injunctive proceedings.

That said, it is a matter of some regret that this bill comes before the House having found its genesis in the government's and the Prime Minister's continuing petulant tantrum about their lacklustre 2016 election result. By approaching this matter in this way the government is again highlighting the real concern held by the Australian people that this government does not believe in and does not support Medicare, a Labor-designed institution that is critical to Australia's national healthcare system. In order to understand how we have arrived here we must travel back to election night on 2 July 2016. It was very late on election night—in fact, it was early the following morning—that the Prime Minister finally faced the Australian people and commenced the longest dummy spit in Australian political history. Mr Turnbull spent a full four-fifths of his election night speech railing against text messages and the Labor Party, trying in vain to prove his own leadership in the face of losing 14 seats at that election. It was 35 paragraphs of complaints before the Prime Minister turned to a meagre two paragraphs on what he and his government would do for the Australian people. These were the only paragraphs in his election night speech which attempted to set out what exactly the point of his government was. Unfortunately, for the Prime Minister, those two paragraphs are as vague in purpose as the last 18 months of his and his government's embarrassing tenure.

This House well remembers that the political purpose of this bill comes out of an election campaign in which the Prime Minister and the conservative parties of Australia ran a scurrilous and thoroughly dishonest scare campaign about Labor's negative gearing policy. We've learnt over the holidays from a freedom of information request that the Prime Minister and his Treasurer both held advice from the Commonwealth Treasury that predated the 2016 election campaign which stated unequivocally that reforms to negative gearing and the capital gains tax discount would only see a modest downward impact on property prices. Yet that advice—formal advice from the Commonwealth Treasury—was recklessly ignored by a desperate government which spent six weeks prophesying apocalyptic events. It's in this context, the context of this government getting caught up in its own lies, that we arrive on the first day of a new parliamentary year.

While the Labor Party support this bill, we continue to hold reservations about the approach that the government has taken to the promulgation of this legislation. The Joint Standing Committee on Electoral Matters determined in December 2016 that it would conduct a further inquiry and make recommendations in early 2017 regarding the issues of impersonating a Commonwealth officer and Commonwealth entity. In neither the Joint Standing Committee on Electoral Matters second interim report, published in March 2017, nor the third interim report, published in June 2017, did the committee provide a recommendation about the need for legislation in this policy area.

It's fair to say that the Senate Legal and Constitutional Affairs Legislation Committee received numerous submissions that expressed concerns that the new offences went beyond the stated policy intentions and that the scope of conduct caught by the bill had the potential to impact on freedom of expression. In particular, submitters expressed concerns about the adequacy of the protections for satirical, academic and artistic activities. At section 150.1(7), the exemption for satirical or academic purposes limits the use of the exemption to conduct engaged in solely for a genuine satirical, academic or artistic purpose. The use of the word 'solely' in the satirical exemption provision narrows the possible conduct that may be protected by the defence and fails to account for the fact that conduct that has a satirical, academic or artistic purpose may very well contribute in an entirely beneficial way to public debate and discussion.

Notwithstanding these concerns, the Senate Legal and Constitutional Affairs Legislation Committee stated:

The committee has weighed these concerns with the fact that the proposed offences almost mirror the current offences for impersonating a Commonwealth official, including the form in which the proposed exemption has been articulated.

It's to be hoped that these new offences do not operate in such a way as to gag legitimate criticism of governmental activity. Sadly, it's become the hallmark of this government that legislation has been brought before this House which overreaches and lacks the necessary conceptual clarity that's required for parliament to properly scrutinise and be satisfied that the legislation placed before it for enactment is necessary and proportionate to the objectives it seeks to achieve. Where, as was said with this bill, the drafting is 'lazy, confusing and ambiguous', the parliamentary task becomes more difficult. More importantly, when this bill becomes law, it has the potential to cause differing judicial interpretation and uncertainty as to the persons who, and in what circumstances, it may apply to.

One of the central purposes of statutory design is clarity. Ambiguity is an imposition on the rule of law and an undesirable feature of any legislation, particularly criminal legislation, which has the possibility of terms of imprisonment attached to it. In part, these regrettable conceptual and linguistic laws can be understood as the by-product of a government approach to legislating which is more interested in political pointscoring and the settling of perceived grievances than with the proper use of parliament and with the awesome responsibilities of parliamentarians as legislators. This parliament has many serious issues to debate and legislate on, and yet the government is determined again to expend the parliament's time on political pointscoring.

The Labor Party hopes that in future the government will follow proper parliamentary processes, consult widely, accept the advice of experts and develop legislation that is not solely designed to serve a political end. Labor supports the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017, and I commend the bill to the House.

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