Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I am pleased to be speaking on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. The bill proposes to make three minor amendments: in the Australian Federal Police Act 1979, in the Crimes Act 1914 and in the Crimes (Aviation) Act 1991. None of the three amendments are controversial; rather they are updating outdated legislation or fixing minor administrative oversights in the act as they stand. The bill seeks to reinsert the maximum penalty of two years imprisonment for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979. The penalty was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. The re-enactment of the penalty is retrospective to when it was repealed so as to ensure that any convictions related to offences of this nature in the past two years do not escape punishment. The opposition supports that change in the bill.

Secondly, the bill seeks to alter the timing of the second review into part ID of the Crimes Act 1914 with regard to the collection and use of DNA material by Commonwealth law enforcement agencies. There was a review of this matter in March 2003, and the legislation required that a second review take place two years later—in other words, in March 2005. This did not take place, as interjurisdictional DNA matching between most states and territories and the Commonwealth has only been effectively in place since mid-2007. It is argued that for a review to be fully effective it is desirable that a body of cases progress from matching to investigation to trial so that there can been a meaningful test of the powers and safeguards in the legislation. The bill therefore requires that the second review commence no later than 1 November 2009. Again, the opposition supports the change.

Thirdly, the bill seeks to ensure that the ACT Criminal Code is applied to flights originating or finishing in Australia or flights on Australian aircraft. Currently the ACT Crimes Act 1900 and the ACT Prostitution Act 1992 apply to criminal behaviour on board flights. However, many offences which were formerly in the ACT Crimes Act now appear in the ACT Criminal Code. This amendment will also allow regulations to be made to specify particular ACT laws that apply on relevant flights. This will provide flexibility in the event of future changes to the ACT criminal law. As I said, the bill is not controversial. It is a follow-on from work that the previous government originated. As a consequence, the opposition has no difficulty with the bill and will be supporting it.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to 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.

Arch Bevis (Brisbane, Australian Labor Party) Share this | Link to this | Hansard source

The member for Blair should not tempt the chair to make pro-Queensland comments, especially at State of Origin time.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Bevis, I must say that I am not at all concerned over the fact that the honourable member for Blair is tempting you to make pro-Queensland comments, particularly at State of Origin time. I think it would be one of those rare occasions, Mr Deputy Speaker, when the member for Blair, you and I would agree absolutely on the desirable outcome of a certain coming event.

Bob Baldwin (Paterson, Liberal Party, Shadow Minister Assisting the Shadow Minister for Defence) Share this | Link to this | Hansard source

Mr Baldwin interjecting

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

The honourable member for Paterson, I think, would really like to live in Queensland, because there are really only two types of people: those who live there and those who would like to live there.

It is pleasing to be able to join the debate on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. It is often considered in the Australian community that those who are in the government and in the opposition basically agree on nothing. But the reality is, as you would be aware, Mr Deputy Speaker, that the overwhelming majority of bills that come into this place do in fact enjoy bipartisan support because, frankly, they are common sense. Often when we debate these bills we wonder why we did not make these decisions earlier. This bill, the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008, seeks to make a number of relatively minor adjustments and inclusions in some of the legislation that assists and supports our crime-fighting agencies to be better able to do their jobs. It is a matter of general concern in the community that the level of lawlessness seems to be much higher than it may have been in the past. Previously people had often been able to go about their daily lives unconcerned at the level of crime, but everyone in our society is worried over the level of crime that we have, and the legislation we have that enables our law enforcement agencies to do what they need to do should enjoy everyone’s support.

Our crime-fighting agencies have highly professional officers. They make the decision to serve their communities through the police service and I think all of us would commend those officers for their decision to follow a vocational path that has at its heart that dedication to the community. Often their families suffer as a result of the service of these officers in the interests of the community. They carry out an incredibly challenging role and one that is often the target of public criticism.

Sometimes people have individual complaints about law enforcement officers, whereas most law enforcement officers endeavour to carry out their duties to the best of their ability. That is not to say that we ought not to have mechanisms in place for when people do have genuine complaints about law enforcement agencies. That, I believe, is also a matter of bipartisan attitude. However, anyone who legitimately serves in a law enforcement agency from the Australian Federal Police through to the police services in our states and territories really should be praised for their hard work, their dedication and their commitment to their fellow Australians. So to our men and women in uniform and those who are not in uniform I say: well done and thank you.

Mr Deputy Speaker, you would be aware that the changes set out in this bill will assist law enforcement officers and better ensure the safety of Australians. The bill will reinsert the maximum penalty of two years in prison for the secrecy offences as outlined in the Australian Federal Police Act 1979. As a drafting error, this penalty was inadvertently removed from the act a couple of years ago through changes to the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. The reintroduction of the two-year penalty will be made retrospective to the date when it was removed to ensure any offenders who are or have been charged and convicted under the laws are not able to, shall we say, defeat the intention of the law.

I am someone who has a major concern, generally speaking, in relation to retrospectivity. It is my personal belief that a citizen ought to be able to operate within the law as it currently exists without having the parliament come along at a later date, change the law and then apply that changed law to the earlier date when the action was carried out. I suppose a very bad example of that would be where someone was driving down Kingsford Smith Drive at Hamilton observing what was then the speed limit to find the parliament then retrospectively reduced the speed limit and imposed penalties on someone who, at the time he or she was driving down Kingsford Smith Drive, was observing the law. The situation of this bill, however, is not like that. What we are doing is simply fixing up an unintended consequence, I suppose, of bad drafting of the amending legislation in 2006.

Secondly, the bill changes the review date for sections of the Crimes Act 1914 that deal with the collection and use of DNA evidence. The Crimes Act 1914 as amended had included a date for a second review of the provisions of the act that established the national criminal investigation DNA database. That date was to have been March 2005, which I suppose with hindsight was an inappropriate date. It was too early a date by which to have a thorough review. It is preferable, as has become obvious, that any newly established body be given an adequate and reasonable time frame to execute all of its tasks so that, for example, the national DNA database has at least been tried and tested on more than one occasion so that the reviewers actually have something to review. To ensure that the planned review will be meaningful, the bill sets a new date of 1 November next year. This new date will allow for the compilation of a body of cases which will include initial matching of DNA samples using the NCIDNAD through to investigation of cases and finally trial. Undoubtedly, every reasonable person would say that this is a very sensible amendment to the act.

Thirdly, the bill ensures that crimes committed on an aircraft during a flight will be dealt with under appropriate laws and through relevant channels and that offenders will face the appropriate deterrents and penalties. This change to the law impacts on any aircraft involved in a flight within Australia or to or from another country. The offences outlined in the Australian Capital Territory Crimes Act 1900 and Prostitution Act 1992 that are referred to are under section 15 of the Crimes (Aviation) Act 1991. However, some of the crimes previously in the Crimes Act are now contained in the relatively new Criminal Code 2002.

This bill ensures that the new Criminal Code now also applies on flights and provides legislative integrity in the event of further changes to the ACT Criminal Code in future years. These major changes will enhance the fighting of crime in Australia. These are changes which should enjoy the support of everyone.

Before I resume my place, I want to comment briefly on a point made by the honourable member for Blair. In his contribution he referred to how, with respect to family law, we had been able to harmonise the law in Australia. I think all of us would like to see the laws in our states as close as possible to the laws in other parts of the country so that we have a system of harmonised law. There are of course some matters where the Australian government is able to engineer that uniformity but, given the federal nature of our Constitution, there are other matters where this desirable outcome is more difficult. I am happy to commend the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008 to the House.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

By and large the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008 could probably be classified as one of those bills which are reasonably technical in nature. It really makes three essential changes. It varies the Australian Federal Police Act 1979 to reinstate a penalty provision for breach of secrecy. It amends the Crimes Act 1914 to alter the timing for a second independent review of part ID of that act, which deals with the application of review of the national DNA database. Thirdly, it amends the Crimes Aviation Act 1991 to install the terms of the common Criminal Code as it applies in the ACT and in the Jervis Bay territory for all purposes of transportation in and out of the country, including on airlines. I will go to each of these in turn.

Firstly, I will deal with the AFP Act and the provisions of secrecy. Mr Deputy Speaker Bevis, I know you had a very clear interest in this matter when the former government decided to establish the Australian Commission of Law Enforcement Integrity. As you would recall, this commission was established to look at integrity regimes as they applied through the Australian Federal Police and the Australian Crime Commission. I understand that the minister may be considering extending that to other areas of federal law enforcement, but that was the way the act was originally initiated. It was to carry out the same sort of activity as one would find, for instance, in the Police Integrity Commission in my home state of New South Wales and ensure that the integrity of the Australian Federal Police and the Australian Crime Commission did allow for the conducting of operations by the law enforcement integrity commission. It has coercive jurisdiction. It can compel people to answer its questions. It is a body to ensure that appropriate standards are being met by our senior law enforcement agencies. I know some would say that that was all just a matter of fact, but these were very significant changes at the time because since 9-11 we have given significant powers to our federal law enforcement agencies and what goes with those powers is responsibility. As we have seen in a recent exercise, unfortunately in New South Wales, involving their crime commission shows how important it is that we do everything that we physically can as legislators to ensure the integrity of those officers working within those bodies.

In establishing the Australian Commission of Law Enforcement Integrity, variations were made to the act and principally variations were made also to the Australian Federal Police Act, in particular provision 60A of that act. Section 60A made it an offence for officers engaged under that act to divulge certain information, to make a record or to distribute information. Those provisions were quite significant. The secrecy provisions had a provision of up to a two-year period of imprisonment for breaching that legislation.

With the advent of ACLEI and its own act, for some reason—inadvertently, as I understand it—the AFP Act was varied to remove that part of 60A(2) which dealt with the secrecy provisions and in particular the terms of breach of the secrecy provisions. This bill before us purports to reinstate the provisions of retrospectivity without impacting on the general scheme of arrangement in terms of the law enforcement integrity commission and its act but to ensure that officers and personnel employed under the AFP Act are still bound by the secrecy provisions of the AFP itself. So that is what that provision attempts to do through this relatively minor amendment which in terms of law enforcement integrity, certainly the integrity and discipline of the Australian Federal Police, would be regarded as a significant rectification of a deficiency in the legislation.

The second aspect deals with the Crimes Act and seeks to amend section 23YV(5)(a). This deals with the second scheduled review of the national DNA database. I recall only too well the time I spent before coming to this place in lobbying federal members of parliament and the government of the day for the establishment of the national DNA database. More particularly, I recall lobbying many state and territory jurisdictions to ensure that we had mirror legislation established. It was a matter not just of agreeing to have a national DNA database but also of agreeing to standards and procedures under which, by law of the various jurisdictions, samples could be taken and held for the purpose of further comparison. The national DNA database is one of the most significant tools of contemporary policing. Most state and territory governments certainly agreed with the establishment of the database and, although it may have gone beyond most aspects of the Constitution in terms of law enforcement, the federal government at that time committed something like $50 million for its establishment. To put it in colloquial terms, it might have been the Commonwealth’s buy-in to that arrangement, but it has certainly had a significant impact on policing across the board. Whilst all of the state and territory ministers seemed to be able to come together and agree that this was a good piece of kit for modern-day policing, by the time they all returned to the various parliaments from whence they came the odd variation got into this common piece of model legislation that was to be developed.

It came to a head with the Peter Falconio case in the Northern Territory. The Northern Territory Police were very keen to ascertain a possible match from DNA taken from a suspect. The suspect was in South Australia. They had the sample taken, only to find that the manner in which the sample was taken was not admissible in a court in the Northern Territory because, whilst government was going to enact mirror legislation, as it transpired there were significant differences between the enabling legislations, such that the sample was not admissible in that court. I have represented police officers for many years, and one of the things that has constantly been put to me is that crime and criminals do not exactly observe geographic boundaries. That being the case, it would seem a little erroneous on our part to have legislation that was not compatible in each of our respective criminal jurisdictions. That is how the DNA data profiling and the establishment of the DNA database came about. In its time it was a laudable event. It certainly was one of the biggest impacts on modern-day policing, but there are still things that need to be examined. One of those things is to protect the liberties of men and women who have, for some reason, had their DNA collected. It is important to ensure that their rights are not being abused and that the procedures established in this legislation are followed.

This aspect of the bill defers that second investigation, the second review period. Having been engaged in the past to represent police from just about every state and territory jurisdiction, I am aware that the establishment of the national DNA database not only has increased the number of arrests but also has had the effect of eliminating a number of people as suspects in various crimes. That in itself is also a significant development. This database has been operational for some time and we are doing much to ensure that each of our forensic laboratories in every state and territory jurisdiction fully complies. We are also improving the degree of matching investigation and the way the information is discarded. That will all be addressed in this second review. The national criminal investigation database was the result of genuine collaboration and cooperation of state, territory and Commonwealth police services and their forensic units. It provides police access to a national DNA database and the capability to conduct rapid automated interjurisdictional and ultrajurisdictional DNA profile matching. This is provided under very strict guidelines laid down by this legislation. There are also disclosure safeguards in accordance with the privacy legislation and other relevant legislation. Procedural compliance will also be examined in this second review.

The database itself is operated by CrimTrac. One of the things about CrimTrac is that they do not source their own information; information is only actually put on the database by state and territory police jurisdictions and is then capable of being accessed. To that extent, CrimTrac do operate as a major search engine—or at least a sort of matching engine, if you like—when it comes to DNA profiling. At the moment all states and territories, with the exception of New South Wales and Victoria, have signed on to having a common application. In terms of New South Wales and Victoria, whilst they are still waiting for some legislative aspects to come into play before they can legally commit, nevertheless they are following the identical pattern now of how they go about collecting information and what information is to be stored on the national database. So a common standard is actually being applied.

I did indicate that I know, having worked for the police in the past, that the national DNA database is considered to be probably the most significant advance in contemporary policing. Having said that, I would like to talk about a person whom I know you, Mr Deputy Speaker Bevis, know well—Peter Alexander, who was the president of the Police Federation of Australia for the last 10 years. Quite frankly, he spearheaded the approach of the development of what could be seen as the police profession itself. He is one of those individuals who was absolutely convinced of the merit of establishing a national DNA database as a tool for contemporary policing. I should advise you, Mr Deputy Speaker, that, after serving as head of the PFA for 10 years and as head of his own association in South Australia for 17 years, Peter has only just retired. I had the opportunity to spend some time with him last weekend. As a person who has spent so much time on criminal investigations as a senior sergeant of a major crime squad in South Australia, it was very interesting to hear his thoughts on what has changed in policing—apart from the criminals—in terms of the ability of the police to do their work efficiently and effectively and to serve the community.

Without putting too fine a point on it, one of the biggest things that he suggested has changed is technology, and the DNA database itself is what has established a significant amount of that change—a change not just because of what it did in relation to being able to data-match DNA samples across the nation but also because this, together with the national fingerprint register, actually brought criminal investigation intelligence into some form of central repository. It gets back to what I said a little earlier—that is, criminals do not necessarily respect geographic boundaries; therefore, it stands to reason that we should not simply have states and territories with stand-alone technology which works against the ability for crimes to be detected.

People say that that should have been dealt with years ago. It probably should have. There was something that came up only recently in an inquiry held by the committee oversighting the Australian Crime Commission. In that inquiry Mark Burgess, who is the Chief Executive Officer of the Police Federation of Australia, referred to the shooting of a police officer which took place in Karratha. The shooting was actually committed by a person who was suspected of murdering two people only a couple of days earlier in Victoria. Talking about offender William Watkins, Mr Burgess said:

Watkins had three days earlier murdered sisters Colleen and Laura Irwin in Melbourne. He had then driven 5½ thousand kilometres in those three days to Western Australia, where he came under the notice of Senior Constable Shane Gray at Karratha for failing to pay for petrol.

So he did a runner from a petrol station. Mr Burgess continued:

When Gray did a check on Watkins via the Western Australian police computer system he was not shown as wanted or a suspect on the system.

Unfortunately for the constable involved, when he went to actually stop this bloke for what he thought was just not paying his petrol bill, the constable was shot. What Mike Burgess draws from that is that one of the things we could do more effectively is to take a leaf out of what we did in establishing the national fingerprint registry and also the national database and look at having a single national case management system where all intelligence could be captured and whereby police from each state would be able to know what they were likely to be confronting on a case-by-case basis. (Time expired)

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. Being a former member of the Australian Federal Police, I very much take an interest in any legislation that affects the organisation that I was part of. I joined the AFP in 1986. That was not very long after the Australian Federal Police Act 1979 came into effect. With regard to this bill—I will get straight into it—when you read section 60A(2), unfortunately a recent amendment inadvertently removed the penalty. In other words, members of the AFP could have divulged prescribed information and then not attracted any penalty. That has been rectified in this bill and now a two-year penalty of imprisonment will be available once again.

I recall the time that I was in the AFP as a sworn constable. I knew the security arrangements at Perth and Sydney airports very well from serving there, and that is pretty useful information. In theory, if I divulged anything that I knew then—and it would be true still if I were to divulge anything now that I can recall from those days—I could spend two years in jail, so I am very keen not to go down that track. But as a constable in the Australian Federal Police, I served, following training in Canberra, in Sydney and in Perth.

Although I particularly enjoyed my time in plain clothes at Sydney airport, I also had a very good period with the fraud squad in Sydney. It was at that time, early in 1987, that I recall undertaking surveillance around Sydney as part of the fraud squad. I can say that it was the only period in my life where I have actually gone though garbage bins on a professional basis—or, in fact, on any basis whatsoever! It was not for sustenance but, obviously, for documents. We conducted surveillance across the city in that squad and at one point I recall we were following a suspect. I emphasise that we were a fraud squad; we were not a professional surveillance squad. But we needed to conduct that surveillance on a person suspected of defrauding the Commonwealth. The squad had a choice of five vehicles to use in those days. They were all Ford Falcons and all had a metal sun visor over the windscreen. On that day, three of the cars were of a bone colour. So we had a greatly limited capacity in those days. Everyone had a Ford Falcon, three of them were the same colour and there were only five cars. So it was not a great job, but that is what it was like in those days. It was pretty similar with the rest of the equipment that we had. Radios, computers, computer programs and other equipment were very far behind the high standard of kit that the AFP has these days.

A similar situation existed in regard to accommodation. When I was in the Federal Police, we were in one of the TNT towers in Redfern, covering just a few floors of that building. In fact, one night one of our Federal Police sworn officers actually got beaten up after parking a car just down the street in the official car park. I understand now that the AFP has a building in the CBD itself. Over in Perth there was a similar situation. The AFP was on Adelaide Terrace, on two floors. Now there is a building on Murray Street in West Perth, housing the AFP, Protective Services and other organisations of the Commonwealth. My point is that in 1987 the AFP was a poorly resourced and badly equipped organisation. It had fewer people, it had technology problems and it had far less support than it has had in recent years under the previous government. So I refer to the late 1980s as the ‘dark ages’ of the AFP.

The evidence is all around us. The AFP is seen as a world-class organisation in law enforcement these days. They were there in East Timor for victim identification. They have been there to implement the Howard government initiatives in preventing, countering and investigating terrorism; to oppose illicit drug trafficking, transnational and multi-jurisdictional crime; to oppose organised people-smuggling; to oppose serious fraud against the Commonwealth; to combat high-tech crime involving information technology and communications; for regional peacekeeping and capacity building; and also to work against money laundering. These are the modern battlefields for law enforcement in Australia and they affect Australia in the global environment. The AFP is well armed now with the capacity to fight these battles, and there is a stark difference between what the AFP can achieve now and what it was like back in the 1980s.

The second part of this bill seeks to alter the timing of the second review of the collection and use of DNA material by the Commonwealth law enforcement agencies. An initial review took place in March 2003, with a second review to occur two years later but, because interjurisdictional matching between most states and territories has only been in place since mid 2007, I understand that the 2005 review was not undertaken—for obvious reasons. As with all such reviews, case law is derived from a body of cases that have progressed to trial. Without such a body of cases there will not be a meaningful test of the powers and safeguards. The bill thus requires the second review to commence no later than 1 November 2009, and that should be good timing to properly assess the progress of DNA in this country.

There is little doubt that DNA represents one of the most important breakthroughs in modern law enforcement practice, and for many years now the police in Australia have been applying DNA technology with great effect. I would like to take this opportunity to place on record my appreciation of the work the WA Police do to protect the people of my electorate in Western Australia—in particular Superintendent Andy Garkaklis and Inspector Gary Lewis of the north-west metropolitan district, and station OICs Craig Wanstall of Warwick, Ian North of Ballajura and Matt Ray of Wanneroo. Together with their teams over in Perth, they do a great job in clearing up a lot of the burglaries that take place and the other crimes that unfortunately afflict the suburbs of Cowan and elsewhere around the country.

The third part of the bill serves to ensure that the ACT Criminal Code can be applied to Australian aircraft as well as to flights originating or finishing in Australia. The code came into effect in 2007, which as I understand it resulted in some new offences that had not been in the ACT Crimes Act. The bill will enable all the offences in the code to be able to be applied on those aircraft, and this will allow flexibility in the event of future changes to ACT criminal law. This is a non-controversial bill and we support the changes that this bill provides.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

I am pleased to speak on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. As the Minister for Home Affairs, the Hon. Bob Debus, said in his second reading speech, this is the first criminal law bill that he has brought before the federal parliament. I could not let it go through, therefore, without speaking on it and saying something about him as well. He said in his second reading speech that he looked forward to bringing many more bills forward, including a victims’ rights package and some federal sentencing reforms, and each of the large packages will be the subject of extensive public consultation. In relation to the minister, I would say that he did have a distinguished career in the New South Wales parliament. As Attorney General, his reputation was one of someone who did consult extensively with all sections of the community—with the bar, with the solicitors and with the general community—and that of someone who always considered the position before he brought forward legislation.

My concern is that we are seeing less and less of the likes of the minister these days and that too often we are seeing politicians in senior and responsible positions reacting to the lynch mob in the community and reacting to the hounds in the press gallery. Basically what concerns me is that we are now having trial by media, and in effect we also have a situation where there is no longer a presumption of innocence; it is a presumption of guilt. This is not a recent phenomenon. I have made the point in other places that we had a High Court judge, Lionel Murphy, who could not even get a fair trial. At his first trial there were six points of law on which a properly constituted court of criminal appeal and a court of appeal unanimously agreed. They did not need to decide on another 18 points in granting him a second trial in which he was ultimately acquitted of what he was charged with. What that means is that we as legislators need to be very responsible and careful in how we frame laws. We must not throw out those principles of justice that have been with us for a very long time; we must learn from the mistakes of the past and not repeat them. I am not saying there should not be new laws. What I am saying is that we as legislators need to be careful not to go to the lowest common denominator.

The legislation before us does not do that. This is a situation where, frankly, there are some miscellaneous but important amendments to the Crimes Act 1914, the Australian Federal Police Act 1979 and the Crimes (Aviation) Act 1991. The explanatory memorandum says that the first amendment retrospectively re-inserts the penalty for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979. There is a maximum penalty of two years imprisonment for the secrecy offence and this was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. So this amendment does not alter the elements of the offence but it does re-enact the penalty retrospectively to when the penalty was repealed.

Retrospectivity is something that happens regularly in civil matters and it can happen in criminal matters. The High Court considered this in the case of Polyukhovich v The Queen. You are able to have retrospective legislation in relation to criminal sanctions that are framed in a general way but not in a particular way. For instance, if there were an attempt to retrospectively deal with criminal matters in relation to me in particular and capture conduct directed at me in particular, there is an argument under Polyukhovich that that might not survive legal challenge. So the retrospective nature, particularly of this piece of legislation, is something that no-one should be alarmed about; it is just that it was inadvertently left out in 2006. I think that is a proper clause for the parliament to support.

The second matter deals with deferring the second review of part ID of the Crimes Act 1914 until November 2009. In relation to that, the explanatory memorandum says:

The purpose of this amendment is to ensure NCIDD—

that is, the National Criminal Investigation DNA Database—

has been fully operational for some time when the review takes place. Interjurisdictional matching between most jurisdictions only commenced in mid-2007.

The explanatory memorandum goes on to say:

For a review to be fully effective, it is desirable that a body of cases to have progressed from matching, to investigation, to trial, so that there has been a real test of the powers and safeguards in the legislation.

That is where the recommendation is that the second review will need to commence by 1 November 2009. Again, in my view that is a proper matter for us to legislate on. There is no point in having a review if it is not really going to achieve anything by commencing the review no later than 1 November 2009. I think we can have a substantial review that is meaningful. So, in relation to the second matter that this legislation is addressing, it is not controversial.

The third matter relates to amending the Crimes Aviation Act 1991 to ensure standard criminal offences apply on relevant flights. The explanatory memorandum says:

The Crimes (Aviation) Act governs crimes and other acts committed on aircrafts or in airports or related facilities. Section 15 of the Crimes (Aviation) Act is intended to ensure that standard criminal offences (eg theft and assault) apply on flights commencing or finishing in Australia and to Australian aircrafts in flight outside Australia. These include:

any aircraft engaged in a commercial flight with other countries or among the States and Territories

any aircraft engaged in a flight that started in Australia

an Australian aircraft engaged in a flight wholly outside Australia, and

a Commonwealth aircraft or defence aircraft.

It goes on to say:

To ensure that relevant criminal laws apply on board these flights, section 15 of the Crimes (Aviation) Act applies the Crimes Act 1900 (ACT) (ACT Crimes Act) and the Prostitution Act 1992 (ACT) to relevant flights. However, many offences which were formerly in the ACT Crimes Act now appear in the ACT Criminal Code. The amendment will ensure that the ACT Criminal Code as well as the ACT Crimes Act applies to conduct on relevant flights. The amendment will also allow regulations to be made to specify particular ACT laws that apply on relevant flights. This will provide flexibility in the event of future changes to ACT criminal law.

Again, I think those are provisions that a reasonable person could not object to. What we are doing is putting beyond doubt the fact that this sort of conduct is criminal in relation to relevant flights—and we have the jurisdiction to do that; there is no doubt. There has been legislation in relation to Australian citizens and indeed others, and I do not want to go into the constitutional niceties of that.

I do not have any problem with these sorts of tidying-up matters when they are not really expanding beyond the existing principles of the criminal law; I have a problem when there is an attempt to expand and go beyond existing principles. That is why, when we were in opposition, I had some problems with the first drafts of the antiterrorism laws and the ASIO Act. As it turned out, the then government and the then opposition sat down and talked it through and we agreed on a set of amendments that brought those pieces of legislation within the parameters of the criminal law as it was understood. We had the government and the alternative government agreeing on what I think were very serious offences but offences that filled in gaps that were in the existing criminal law.

I think as legislators we cannot have a situation where we say ‘no more laws’; if there is a gap, and it can be demonstrated that there is a gap, we have a duty to protect our citizens. So I think it is appropriate to bring in those laws to clarify what happens in relation to this third matter of aircrafts. People should not be concerned that there is a big overreach here by the Commonwealth. To me it seems there has got to be some consistency; there have got to be some consistent principles.

That is why I am very supportive of what the Minister for Home Affairs is doing in amending this act. Because of the amount of legislation that goes through this place, at times we are going to have the situation where something goes through and it subsequently needs to be remedied. That happens to both sides of politics; it is not unknown. We have had instances in the past, in the time that I have been here, where we have had to make slight amendments to legislation because it is not properly numbered or whatever. So there is no great conspiracy about it. As for the principles we are talking about this evening, particularly the retrospectivity in relation to criminal matters, they were matters at the time, in 2006, that were criminal and attracted a penalty, but they have fallen through the cracks as a result of omissions. It is not as if we are creating something new that people were not aware of. The truth is that it is important.

Why I say I have no problems with its legality is that the High Court in Polyukhovich v the Commonwealth allowed such provisions. That is why we were able at one stage to pass laws in relation to war criminals and acts committed 30 and 40 years before the legislation went through the parliament—because it was directed not at particular individuals but in a generic sense at conduct that was deemed to be heinous and worthy of legislating so it could be put on the criminal statute books.

I want to finish this contribution in a similar way to how I commenced it. I am very happy that the Minister for Home Affairs came to this parliament from the state parliament, because he brings with him a wealth of knowledge that will enrich the ministry of the present government and a steadiness that we can all be comfortable with because he has got a track record. I think too often we do not acknowledge that, and I wanted to do that on the occasion of the first piece of legislation he has introduced. He is very affectionately regarded in New South Wales. His electoral record speaks for itself: having lost his seat, he subsequently regained it and, in effect, assisted the re-election of a Labor government in a seat and in an area that is not an easy one for the Labor Party. Although I do not want to bring you into the political process, Deputy Speaker Schultz, you yourself are one of the few members that previously—I do not necessarily know about now—when you were a bit younger and fitter and more active, could have got themselves elected to this place as an Independent, without the badge of a political party, and that is on the basis of the affection in which your community held you and the work that you did for your community.

In relation to the Minister for Home Affairs, I do look forward to his considered views on a whole range of legislation that will come before this House in this term of parliament and in the life of this parliament, and I am very ‘relaxed and comfortable’, to use someone else’s phrase, that he is here and that he has carriage of what are sensitive matters, because I know he will bring a balanced view. He is not a hanger and flogger; he does not take an extreme position on one side or the other. He brings in thoughtful legislation that is needed within our community. So I do commend the bill before us to the House.

Bob Debus (Macquarie, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

in reply—Mr Deputy Speaker, I can do no less than begin by thanking the member for Banks for his kind remarks—and perhaps I should thank him for his kind remarks about you as well. To be fair, there have been several occasions during this debate when it seemed as if we were taking a position more akin to State of Origin than the normal division between the several sides of this House! I thank the member for Banks also for his thoughtful contribution, which demonstrated his own experience and deep understanding of the criminal law.

I mention other matters that were raised during the debate. I do not think it is necessary for me to again rehearse the provisions of the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008they have been sufficiently described—but during the debate the member for Werriwa mentioned the proposal for a single national case management system for police in which each jurisdiction could share. This is certainly an important idea. More effective information sharing between policing agencies is inherently desirable, and the government will indeed be looking at this issue of case management at the national level, taking into account the recommendations of the Parliamentary Joint Committee on the Australian Crime Commission in its 2007 report Inquiry into the future impact of serious and organised crime on Australian society.

A matter which was raised during the debate by the member for Blair concerned the Model Criminal Code and his support for the further development of that code through all jurisdictions. There has actually been some not insignificant implementation of many chapters of the Model Criminal Code by a number of states and territories, including in New South Wales during my time as Attorney General there. We have passed model laws concerning antislavery measures, computer offences and bushfire offences. My recollection is that New South Wales actually implemented the model law for forensic procedures. However, there are some significant gaps in implementation. I should mention, reverting to ‘State of Origin’ mode, that although Queensland has a criminal code it does not in fact take part in the project for a model code. That would be necessary if we were indeed to introduce the model code across the nation. In that context, I mention also that at the meeting of the state and Commonwealth attorneys-general in March, which I attended with our Attorney-General, we secured agreement to review the implementation of the model code and to develop proposals to progress its further implementation. We will be talking about that again at our next meeting, which I think takes place next month.

I think I have been able to respond to some important ideas put up by members during the debate on what everyone has conceded is a technical, if necessary, bill. Before I conclude, I table a correction to the explanatory memorandum for this bill to correct a minor error. The correction clarifies that item 2 of schedule 1 of the bill, dealing with the deferral of the DNA review, commences on the day of royal assent rather than the day after royal assent. That is a technical correction to a technical bill.

Question agreed to.

Bill read a second time.