Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I am not sure what the minister’s interjection was, but maybe he will respond on that process. If people, especially the government, are frustrated by this debate, they have absolutely nothing on the rest of us. We have had less than 24 hours to look at, scrutinise, analyse, debate, potentially amend and pass this legislation—and then it is going to committee. If we are going to embrace retrospectivity, we may as well embrace it for all things and have retrospective committee references for retrospective legislation. It is extraordinary.

The result, the government says, is that a raft of evidence obtained under the ACC’s coercive powers is now subject to legal challenge. We are not dismissing that; we are not disputing that. We are not suggesting that that is not an important thing, but it would have been nice if the government had ensured that people had time to digest that and to look at the myriad of potential solutions available to the government or at least to look at the myriad of fundamental implications as a consequence of going down this particular legislative path. But what does the government do? It attempts to legislate retrospectively to remedy the ACC’s problems and incompetence. That is a big deal in this place, and I am sure that most senators, in dealing with a range of legislation—let alone legislation that deals with issues of criminality—find that legislation dealing with retrospectivity is controversial generally. And, specifically in this case, you bet it is controversial. The effect will be that any summonses or notices issued prior to the bill being enacted and prior to the decision in ACC v Brereton will be valid. We understand that there are up to 30 prosecutions currently on foot. I am sure that the government will outline the issues for us in those prosecutions involving evidence obtained in accordance with division 2 and those that will be affected by the bill.

Again, the Democrats do not underestimate some of the issues at stake here. There is not just the issue of those prosecutions or other cases that may be pending but also issues relating to fundamental legal principles that are potentially breached as a consequence of this legislation. As the Law Council has stated, this will have the effect of suddenly making valid summonses which were previously invalid. As a consequence, people who had previously committed no offence in that they had failed to comply with an invalid summons will suddenly be retrospectively liable to criminal sanction. That is what the Law Council is saying. So I ask the government to respond to those particular accusations, because the situation is quite dire. The right to certainty before the law and to not be subject to retrospective criminal sanction is a fundamental legal right. It is actually a basic human right. Article 7 of the European Convention on Human Rights provides that no-one shall be held guilty of a penal offence made so retrospectively. Article 15 of the International Covenant on Civil and Political Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

My opposition to this legislation is obviously evident, but I am not alone. I am not alone in having concerns about the process and the policy that we are debating today. I think it was summed up well today by the Law Council when they commented:

The Law Council believes that the Australian Crime Commission Amendment Bill, which the government intends to pass in haste, is specifically designed to perpetuate an injustice. The government is inviting the parliament to be complicit in this act. The parliament should reject the proposals.

The Democrats agree with this sentiment. The bill will abrogate a fundamental human right—that is, to not be subject to retrospective criminal sanction. If that is acceptable, if that is the new mode or the new acceptable form in this place, then we need to know about it. Is this standard across the board or is this just in relation to the particular powers—and the arguably coercive powers, at that—of the ACC?

Clearly for some it is not that serious. The bill deals with very controversial provisions which abrogate the right to remain silent, yet we have been given a day to consider it. Moreover, the bill removes safeguards which are not only procedural but form part of the substantive process in an examiner being satisfied that a summons or notice to produce ought to be issued, thus invoking the jurisdiction of the ACC, to use its coercive powers. I do acknowledge that the government, including the minister’s office, and the ACC have made attempts to explain their understanding of the purported urgency of the legislation before us. And, my goodness, of course we acknowledge that the Crime Commission has an incredibly tough time in combating organised crime and without doubt, in some cases, the powers that it has have been and are justified. This is not about the Democrats going soft on crime or wanting people to get away with things. This is us doing our job as legislators in terms of debating legislation in a way that ensures proper time for scrutiny and reflection.

I acknowledge that the government, and certainly the minister’s office today, were very happy to provide briefings. Thank you for that; it was very helpful. But in terms of the government’s role—the government of the day doing this in such a hasty manner—we need more justification. I believe there has been a pattern in this place of government members on occasion paying lip service to the scrutinising role of this particular chamber. There are times when it is more evident than others. Having less than 24 hours to deal with legislation that has wide-ranging impacts, is such a highly contentious piece of law and is arguably offensive to principled sections of law means that on a day like today the Senate is not doing its job.

I realise this debate has obviously been brought on quickly. There are not many speakers on the list—I think there are three of us from non-government parties. I am assuming the intention is to move into the committee stage immediately after this, so there will be minimal time. I note that, in his comments, Senator Ludwig indicated that on behalf the opposition he would be asking the government some questions, some of which he expected they would take on notice. I am assuming Senator Ludwig is confident of getting answers tonight, because, given the bill will go through tonight, when he says ‘take questions on notice’ I am not quite sure of the time frame he is allowing.

In conclusion, I do not doubt the importance of this bill. I do not doubt the government believes that there is urgency and that there is a matter which needs to be resolved. I do doubt that this is merely technical. I do believe this has broad-ranging implications and I really think the government could have acceded to our request not to give us a token hour or two in relation to this legislation. It pretty much stayed in the same place on the Notice Paper, let’s face it—it has not moved up. They could have given us another night. I wonder what consultations have taken place between the government, relevant authorities and the affected communities—and by that I mean the legal sector. I wonder what discussions and negotiations have taken place, because my reading of the Law Council’s attitude is that they have nothing but contempt for this process and the legislation before us. On those grounds, the Democrats will not be supporting the legislation.