Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

The purpose of the Law and Justice (Cross Border and Other Amendments) Bill 2009 is to amend existing legislation that facilitates law enforcement, judicial procedures and dispute resolution across more than one jurisdiction. Schedule 1 of the bill intends to facilitate the operations of the Cross Border Justice Scheme to the NPY Aboriginal lands of the central desert region of Australia to enable judicial officers, police and other officials to deal with offenders from any of the participating jurisdictions, which are Western Australia, South Australia and the Northern Territory.

This bill contains a range of measures relating to legal proceedings with a cross-border element, and it includes New Zealand. Disputes having connection with different states are governed by the Service and Execution of Process Act 1992. Australia also has a cooperative scheme with New Zealand for the service of subpoenas under the Evidence and Procedure (New Zealand) Act 1994, the EPNZ Act. The amendments proposed by this bill are intended to provide some additional flexibility and to broaden the coverage of the existing regime.

The proposals are to, firstly, amend the SEPA to support the Cross Border Justice Scheme. This is a joint initiative of the Western Australian, South Australian and Northern Territory governments to apply initially to the border region NPY lands in the central desert. This will allow criminal justice officials to deal with offenders from any of the participating jurisdictions provided the offender has some connection with the region. The scheme operates under state and territory law but amendments to the SEPA are necessary to ensure that the SEPA does not override those arrangements. Secondly, this will amend the SEPA to clarify that prisoners subpoenaed to give evidence in interstate proceedings may give evidence by audio or audiovisual link with the approval of the court. Thirdly, this will amend the EPNZ Act to include family law proceedings in the scheme relating to the service of subpoenas between Australia and New Zealand. Family law proceedings were previously excluded at New Zealand’s request but the New Zealand government has now passed amendments for their inclusion. The coalition supports the bill.

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

I rise today to indicate my support for the Law and Justice (Cross Border and Other Amendments) Bill 2009. It does contain a range of measures relating to the Commonwealth’s legal framework for resolving disputes as they occur across more than one jurisdiction. I will come to a few of those measures in a minute. Essentially the bill amends the Service and Execution of Process Act 1992, the SEPA, to support the Cross Border Justice Scheme and to ensure that it can operate as intended. I will go into a bit more detail about that in due course. It also makes a number of amendments that are intended to deliver better justice services and improve the safety of communities and regions where they involve more than one jurisdiction.

The bill contains amendments to the existing legislation to confirm the capacity of prisoners to give evidence by audiovisual link before an interstate court, authority, tribunal or person. The bill also amends the Evidence and Procedures (New Zealand) Act 1994 to expand on the range of proceedings covered by the cooperative scheme established between Australia and New Zealand for the service of subpoenas across the Tasman. Furthermore, the measures contained in the bill are consistent with the government’s continuing commitment to make justice more flexible, affordable and less complicated.

I will deal briefly with schedule 1. Notably this bill, as described in the minister’s second reading speech, will facilitate the operation of the cross-border jurisdiction of Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara. I have probably pronounced those names incorrectly but they are ordinarily known as the NPY lands—the Aboriginal lands of the central desert region of Australia. That area is a bit hard to describe without a map but it does cover 450,000 square kilometres and has somewhere in the vicinity of about 10,000 people. This is in an area that I had some significant association with back some time ago before I entered the parliament.

I was actually involved in the establishment of the original proposal between the Northern Territory and the Western Australia government establishing the first joint jurisdictional facility at Kintore. That was brought about because the last thing that we wanted with respect to our Indigenous population—where, like any other population, crimes are committed and violations of laws do occur—was for people to be able to avoid prosecution by simply walking across state boundaries. In respect of some crimes, that required police to go through extradition, a joint investigation or simply not proceed with the matter. By and large, a lot of matters were not proceeded with.

A lot of what occurred in setting up a jurisdiction with a degree of harmonisation between state and territory criminal justice was to bring about what was wanted by a lot of the residents of that area, particularly the women that I met there many years back. They wanted people to be brought to justice and held accountable for crimes they inflicted within their communities and to not be able to evade them by simply walking across a boundary, making it difficult for police to investigate and prosecute, as they had to go through extradition. It was important to bring that about.

Nothing in this bill specifically goes to the application of that scheme. The Western Australian parliament together with the parliament of the Northern Territory will prescribe the operations and laws as they will be applied in this process. At the moment, the state parliament of South Australia has legislation before it doing just that.

It is important to note that this scheme was developed in response to the concerns of many of the old women—I hate to use that term but that is the way that they tend to refer to themselves. They were, in the main, the grandmothers of the area, and they genuinely cared for their offspring and their grandchildren. They wanted to bring about a semblance of law and order. I have to say they were very much the driving force. They certainly impressed me with what they wanted and the reasons they wanted it.

This scheme is about delivering to those remote areas a system of justice, something which is obviously hampered not only by state boundaries and the tyranny of distance but also by the limited number of police. Adding to that the complication of extraditions and all the rest of it makes it very difficult, not only for investigations but also for prosecutions, and certainly for the tribunals or courts that hear and determine these matters.

It was the NPY Women’s Council that highlighted the significant safety issues and concerns of their region. They particularly wanted to stress family violence, sexual abuse, substance misuse and other related matters. They clearly wanted to be able to get on with their lives with a semblance of decency re-established. They did not want people to be able to buck-pass the judicial system by saying: ‘The person’s no longer here; they’ve moved across a state boundary,’ ‘It’s difficult to now mount a prosecution,’ or, ‘It’s too expansive to investigate.’ This addresses the very issues that the women’s council have been raising for some time.

This legislation obviously had the support of all sides. Before coming down here today, I was talking to Mark Burgess, the CEO of the Police Federation of Australia, and the President of the Police Association of South Australia. They were talking to me not only about the significance of this legislation but also about the importance of this being used as a vehicle for demonstrating the value of harmonising our laws and their application when it comes to remote areas. We are obviously doing it there because of issues such as the tyranny of distance. But in their petition it should not stop there. They believe we should be looking at all possible opportunities to harmonise the application of our criminal justice system so that it does not protect the people that least need protecting: the criminals.

I certainly share the view of my colleagues, and I would hope that people do see the proper application of this law as being fine for what we are doing in remote areas of Australia. It also should be the forerunner to what we want to achieve in protecting our communities generally—that is, ensuring the criminal elements do not have the opportunity, through differences in the criminal justice system as it is applies throughout the country, to escape the consequences of the evil deeds that they seek to perpetrate on our communities.

As I said earlier, I am aware that the South Australian parliament has proceedings before it presently. I am also aware of a recent comment made by South Australian Premier Mike Rann. He said:

The anecdotal evidence from police suggests that investigation of minor offences is not pursued, owing to the expense and time in obtaining an extradition warrant to a court authorised to hear a charge.

If that is true then it is not in the interests of justice and it needs to be addressed. That is essentially what we have been saying about what this piece of legislation seeks to address. It is common sense that it should apply not only to remote areas but also to the wider community.

Schedule 2 of this bill deals with the issue of audiovisual links. The amendments to schedule 2 of the bill are designed to clarify and remove any confusion about the use of audio- and audiovisual-link technology for SEPA. The amendments will make it clear that prisoners may appear by audio or video link when subpoenaed to give evidence before an interstate court, authority, tribunal or person. The amendments are not directly related to cross-border justice systems and can apply to any jurisdiction when a prisoner is subpoenaed to give evidence in interstate proceedings. Currently, SEPA only contemplates prisoners giving evidence in person in interstate proceedings. There is no implicit provision in the SEPA for a prisoner to appear by audio or audiovisual link when being subpoenaed to give evidence in another legal jurisdiction. Audio and audiovisual link is currently used for prisoners to give evidence in the jurisdiction in which they are imprisoned. These amendments will make clear that they can be called on to do so in proceedings in any other legal jurisdiction.

Schedule 3 of the bill will expand the range of proceedings that come within the scope of the cooperative scheme existing between Australia and New Zealand for the service of subpoenas. It will allow for the service of subpoenas in Family Court proceedings. These were excluded from the scheme of arrangements when this cooperative agreement was entered into by Australia and New Zealand. This will now set that aside and will allow for the issuing of subpoenas. That will harmonise the activity that it is envisaged will apply across that cooperative agreement between Australia and New Zealand for all matters, including family matters.

In concluding, I would like to think that this piece of legislation will deliver on its intention to enhance the level of cooperation and harmonisation of jurisdictions, particularly in relation to remote Australia. The reason it was introduced there was to ensure that the judicial system and the justice system is not only fair but also affordable, available and flexible and can be administered across state boundaries to ensure that people are protected and that those who are found to have breached the law are called to account. I think this is the forerunner to demonstrate that this country, which has a population of 21 million people, cannot afford to have jurisdictions that are so estranged from one another that it makes it difficult, expensive and inflexible to bring people to justice.

I would like to think that this bill is the forerunner to encouraging people to look at what it is that we must do within our criminal justice system to ensure that these flexibilities, this level of harmonisation, are made more consistent so police can get on with their jobs and the courts can get on with theirs and people can live with the general view that they will be protected throughout our court system generally.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—The Law and Justice (Cross Border and Other Amendments) Bill 2009 demonstrates the government’s commitment to providing Australians with simple and efficient processes for resolving cross-border disputes. The government recognises the difficulties that can arise when disputes spill across borders—but this is the reality today, both within Australia and also internationally. The intention of these amendments is to reduce the additional complexities associated with cross-border litigation in Australia in the criminal and civil areas. I am also pleased that the Senate Standing Committee on Legal and Constitutional Affairs is strongly of the view that the bill should be supported. I commend that committee for the tremendous amount of very solid work that it does.

The debate on this bill, and the Senate committee’s inquiry into its provisions, has focused on the proposed amendments to the Service and Execution of Process Act 1992 to facilitate the operation of the cross-border justice scheme. I want to emphasise that the amendments in the bill do not establish the Cross Border Justice Scheme in themselves. The scheme will operate under legislation passed by the parliaments of Western Australia, South Australia and the Northern Territory. There appears to be some confusion about this, so I think it is important to clarify the point and correct the record.

The amendments in this bill provide that arrangements under the Cross Border Justice Scheme will have primacy over any inconsistent arrangements in the Commonwealth’s Service and Execution of Process Act—in other words, the Commonwealth’s act is being wound back, where there was any inconsistency discovered, to enable the cross-border justice scheme to have primacy and not be overruled by inconsistent federal legislation.

There has been some suggestion that, in passing the amendments we are dealing with today, the Commonwealth would be endorsing all aspects of the state and territory scheme. The scheme does not require these amendments to be passed to commence operation. The purpose of these amendments is to avoid a situation where there are two sets of laws potentially operating in the cross-border region. This would lead to more complex and confusing litigation. There would also be a risk that aspects of the scheme could be found constitutionally invalid to the extent that they may be inconsistent with Commonwealth law, as I indicated.

That said, the government certainly supports the fundamental objective of the scheme, which is to make the delivery of justice services in the NPY lands simpler and quicker. The scheme responds to community concerns, including from the NPY Women’s Council, that justice services are being hampered by state boundaries. In particular, there is concern that state boundaries are enabling perpetrators of violence against women and children to evade police and the justice system. The member for Werriwa, if I might say so, immediately before me made an excellent speech in that respect.

The flexible arrangements established under the scheme will assist police, magistrates and other officials to deal with the high levels of family violence, sexual abuse and substance misuse in the remote regions more effectively. Faster response times mean offenders can be more swiftly brought to justice. This helps protect the community, gives a better result for victims and decreases the time an alleged offender may spend in custody before appearing before a judge or magistrate. I am pleased to note that legislation has now been passed by all three jurisdictions, which makes it important that the amendments in this bill are passed as soon as possible, and I thank all opposition members for that support.

The second set of measures in this bill confirms the capacity of prisoners to give evidence by audio or audiovisual link when subpoenaed to do so for a proceeding in a different jurisdiction. Currently, the Service and Execution of Process Act only contemplates a prisoner giving evidence in person in such proceedings. These amendments will give greater flexibility for the use of audio or audiovisual link technology. This will reduce the need to physically transport prisoners to give evidence over what can often be vast differences and, at times, in less than desirable conditions. These amendments do not remove the capacity of a prisoner to be subpoenaed to give evidence in person if that is required in the interests of justice.

The third set of measures is proposed to amend the Evidence and Procedure (New Zealand) Act 1994. The amendments will extend the scheme for the service of subpoenas between Australia and New Zealand for family proceedings in general, with the exception of two particular types of family proceedings which should remain excluded. International child abduction proceedings should remain excluded because of the urgency of these proceedings and the special regime already in place to accommodate service in these cases. Proceedings about the status or property of a person unable to manage their own affairs should also remain excluded. In Australia these proceedings are mostly dealt with by state and territory guardianship boards rather than by the courts. They are excluded from the scheme facilitating the service of subpoenas between the Australian states and territories contained in the Service and Execution of Process Act.

Removing the restriction on family proceedings more generally, however, other than in respect of those two exceptions, will allow the scheme to operate in relation to civil proceedings. Appropriate safeguards against misuse remain. These amendments will bring the Australian legislation in line with its equivalent in New Zealand. I thank the New Zealand Minister of Justice, the Hon. Simon Power, for the tremendous cooperation that the government of New Zealand and his office in particular have provided in respect of these matters.

As members would be aware, the government is also progressing broader reforms to make the resolution of trans-Tasman legal disputes cheaper, quicker and less complex, as I have indicated, with tremendous assistance from the New Zealand government. This government plans to introduce legislation into parliament later this year to simplify the process for conducting civil court proceedings across the Tasman.

In conclusion, the amendments in this bill will benefit many Australians and give them greater confidence in the justice system and how they are served by it. The measures are aimed at the effective resolution of cross-border disputes within Australia and across the Tasman. The amendments reduce confusion around the Commonwealth’s legal framework for resolving cross-border disputes. They reduce burdens in the provision of legal services and facilitate a streamlined process to ensure the framework operates efficiently and effectively for all Australians. I thank members for their contribution and I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.