Ian Macdonald (Queensland, Liberal Party) Share this | Hansard source

I am pleased to enter this debate on the Crimes Amendment (Victim Impact Statements) Bill 2006. I must say with all genuineness that I congratulate Senator Ludwig on bringing this bill forward. I am pleased to be involved in the debate, because it is a rare initiative by the opposition to bring forward for debate in this chamber a sensible piece of legislation that deserves consideration. Indeed, there are a number of government speakers: Senator Bernardi, Senator Trood, Senator Fifield and Senator Nash—all of whom would like to make a contribution to this very serious and sensibly brought forward debate.

Senator Ludwig has obviously given a lot of thought to this. I know Senator Ludwig has been personally involved in looking at this matter through a number of committees on which he serves. As I say, it is good to see this chamber debating a serious attempt to influence public policy and legislation in this chamber.

I want to at length deal with some of the issues that Senator Ludwig raised but, as a preliminary summary, whilst the government is not necessarily directly opposed to the theory and principles of this bill, it has come forward a little too soon. It is an area where a lot more serious consideration needs to go into drafting, which perhaps may address some of the issues that were highlighted in the two reports to which Senator Ludwig referred and to which I will refer later.

There are a lot of things to be done in bringing forward legislation. Legislation such as this, the prosecution of which takes place in state courts under state procedures, will need some interaction with the state jurisdictions. Senator Ludwig, as I do, comes from Queensland, and Queensland is one of the states that does not have legislative provisions or court rules expressly governing the use of victim impact statements. Queensland legislation provides that prosecutors should inform the sentencing court of the details of any harm caused to a victim by the crime. I have always wondered why Queensland has not made that a bit more regulated, rather than just providing that ‘prosecutors should inform the court’.

Let us look at the disgraceful episode in recent history in Queensland, where Dr Patel really should have been subjected to criminal prosecution. According to the newspapers, Dr Patel made an offer to return to Queensland to face his accusers. Had that happened, and had he been convicted, the victims of crime would certainly have been very welcome contributors to any sentence that might have been passed. I do not want to prejudge the case of Dr Patel, but I do say Queensland has a strange approach to some of these areas. Perhaps Senator Ludwig in his position as an influential member of the Labor Party in Queensland—and the Labor Party controls the state government in Queensland—might have been able to do something about that disgraceful episode.

As you would have read, Mr Acting Deputy President, Dr Patel’s representatives offered for him to come back to face his accusers. Unfortunately, the offer was made in the pre-election period in Queensland. So Mr Beattie, who denies it of course, but knowing how governments work one cannot take that denial at all seriously, and his former Attorney-General, Ms Lavarch, refused to have Dr Patel come back. Why? Because it is the last thing the state Labor Party would have wanted to highlight in the lead-up to the state election. So for reasons which in themselves are almost criminal, the bringing of this person to face his accusers was denied. In fact it was refused by the Queensland Premier and the then Queensland Attorney-General.

Lest people say that I am making some of this up, you only have to look at recent events in Queensland, where the Attorney-General was forced to resign over her handling of this particular issue. It is a disgrace that, in this day and age, matters of criminal justice take second place to the interests of the Labor Party in power in Queensland or elsewhere. So, whilst I in no way impugn Senator Ludwig’s motives for bringing this forward, I just wish he would use the same passion and expertise to get the state Labor government—over which he has some influence in Queensland—to get real, to do the honest thing, when it comes to the administration of justice in Queensland.

The case of Dr Patel will go down in history as one of the worst abuses by any government of the criminal justice system in this country. It is a disgrace which unfortunately, because of the numbers in the Queensland parliament, will go unchallenged and unpenalised. If that sort of thing were to happen in a parliament like this, one could imagine that it would almost bring the government to its knees. Of course, in Queensland, where there is an arrogant state government with a huge majority, they ignore these sorts of criminal justice principles. It has a huge majority, I might say, because things like this were allowed to happen in the run-up to the state election.

Had this issue been raised, had Dr Patel come back to Queensland before 9 September and had the attention of the Queensland voting public been directed to this disgraceful episode in the administration of health in our state, then perhaps Mr Beattie would not have the very substantial majority he now has. He knew that better than I know that. He knew that better than anyone in this chamber knew that. That is why Dr Patel was not allowed back into the country to face these accusations brought against him.

So I do join in the debate. As I said, I think Senator Ludwig needs to be congratulated for bringing this forward. It does raise a very serious issue. As Senator Ludwig has said, a victim impact statement is a statement made by a victim to the court about the harm, loss or injury that they have suffered as a result of the offence that is the subject of the sentencing proceedings. A victim impact statement is, however, only one way of informing the court of the impact an offence has on that victim.

Whilst federal legislation currently does not make specific provision for victim impact statements, the impact that a federal offence has on victims can be taken into account under federal sentencing law or state and territory legislation. The Commonwealth Crimes Act, to which Senator Ludwig has referred, already provides that the personal circumstances of the victim, and any injury, loss or damage resulting from the offence, must be taken into account when determining the sentence to be imposed on a federal offender. As I think Senator Ludwig pointed out, that is provided for in sections 16A(2)(d) and 16A(2)(e) of the Crimes Act.

Federal criminal law also picks up state and territory provisions about victim impact statements. As I have mentioned, all of the states and territories—with the exception of my home state of Queensland—have the legislative provisions, or court rules, expressly governing the use of victim impact statements. The Senate should be aware, however, as I mentioned, that the victim impact statements are only one part of sentencing. The role of sentencing in the criminal justice system is quite complex. Under the rule of law that we live by in this country, the public has an expectation that the laws that make up our criminal justice system will be enforced in accordance with established procedures. Sentencing obviously is a very necessary part of this system. Consistency in sentencing is fundamental to the rule of law and public confidence in the criminal justice system.

As we all know, Australia has a federal system of government where legislative powers are divided between the Commonwealth parliament and the state and territory parliaments. Generally speaking, the administration of criminal justice falls predominantly to the states and territories. All of the criminal courts in Australia are established and operated by the states and territories. Those state and territory courts hear all cases prosecuted under criminal law. This does at times have problems.

In my former role as the federal Minister for Fisheries, Forestry and Conservation, I found that the differences in procedures in state courts led to an unfortunate divergence in sentencing, depending on whether the offence was prosecuted in Queensland courts, Northern Territory courts or Western Australian courts. If an illegal Indonesian fisherman was going to get caught and brought to justice, he would want to get caught and brought to justice in the Northern Territory in preference to Western Australia.

In the Northern Territory, the Northern Territory government has a scheme—although I am not sure that this has not been changed in very recent months—where it imposes a fine, but if you do not pay the fine there is no default imprisonment for the nonpayment. So the whole process was fairly curious. Indonesian fishermen would be fined but they would have no ability to pay the fine. In most other courts in Australia, they would go to jail for nonpayment of the fine, but that does not—or did not—apply in the Northern Territory. So they would walk out of the court and then call upon the Australian government to send them back home. The whole thing was a bit illusory.

Unfortunately, under the fishing legislation you cannot jail fishermen for fishing offences, although in other states jail sentences did result, not from breach of fishing laws but through contempt of court for non-payment of fines. I digress slightly here, Mr Acting Deputy President, but that is an area of the international law, the United Nations Convention on the Law of the Sea, which I firmly believe needs addressing. In my term as fisheries minister, it was one thing I desperately tried to get the international community to move on. While someone once said to me that it will take 50 years to change United Nations conventions, we did at least start to have some movement along that line which may have addressed that issue. I misdirect myself in getting slightly off the subject, but it does highlight the need for uniformity in sentences around the states and territories.

Some of the areas that the Commonwealth can legislate on include the major offences that can only sensibly be dealt with by national legislation and national law enforcement, such as money-laundering, illicit drug trafficking, people trafficking, sexual servitude, transnational crime, cyber crime and major fraud. The Crimes Act deals with the sentencing of federal offenders, the administration of sentences and the release of federal offenders, and this includes most federal sentencing provisions. However, state and territory procedural laws are applied and local sentencing options can as well be ‘picked up’ and applied to federal prosecutions in state and territory courts. This means that a court sentencing an offender for a federal crime in one state or territory may have a different sentencing option than a court in another state or territory trying the same offender for the same crime.

Time is running out. There were some other matters I wanted to go into. I hope some of my colleagues might raise those, but I want to comment briefly on the Australian Law Reform Commission report, which I understand was tabled only a month ago—perhaps a couple of months ago—to which Senator Ludwig referred, and also the report from the Joint Standing Committee on the Australian Crime Commission in their inquiry into trafficking of women for sexual servitude. Both of those reports contained recommendations along the lines of the subject of this bill. The recommendations by those two inquiries are taken very seriously by this government. The government does not always agree with every recommendation made by a committee of the parliament but by and large recommendations by committees are seriously considered by the government. Because both of those reports do make reference to a victim impact statement, it is clearly something the government will take very seriously.

The Parliamentary Joint Committee on the Australian Crime Commission’s inquiry into the trafficking of women for sexual servitude was a committee on which Senator Ludwig served. While I was not on the committee at that time, I can imagine from my more recent involvement with that committee that Senator Ludwig would have had a view on this matter. I have no doubt that he and other senators and members of parliament would have played a role in ensuring that that recommendation did go forward to the government. Many of these committees do serious work: they hear from a lot of witnesses, they have a lot of discussion and try to think things through. The Australian government looks seriously at the recommendations coming from them. I know Senator Ellison has in this case. The minister confirms to me that the Australian government is currently considering the recommendations of both the Australian Law Reform Committee and the parliamentary joint committee about victim impact statements in the context of the wide-ranging recommendations that the ALRC made about sentencing of federal offenders. I understand that the Australian government’s response to both reports will be made public. Work is currently being done in preparing a response to both those reports.

With respect to Senator Ludwig, I suggest that it would be premature to consider the use of victim impact statements in isolation. It is my submission that it would be much better to develop legislation in response to these considered reports rather than to this bill. I suggest that the idea is a good one and is one the government has had in mind for some time. Following those reports and recommendations, the government is looking at this very seriously. If a bill is to be brought forward, it is, with respect to Senator Ludwig and his resources, really something which should be done by a government with the full resources of the Attorney-General’s Department and the Minister for Justice and Customs and all the expertise which he and the departments can bring to this area.

This bill is a fraction premature. It is a good idea and the principle is right. It is not one the government would be supporting but is one we will be looking at very closely. I hope if a bill does come forward from the government in the future that Senator Ludwig will be involved and will play a part in it. (Time expired)