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

This is my last go as the Attorney-General spokesperson for our party. I notice it is pretty much the same speakers—we should take this show on the road, Senator Brandis, and try and make the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008 sound even more exciting! Here we go. The bill, as has been pointed out, makes fairly minor amendments to the Australian Federal Police Act 1979, the Crimes Act 1914 and the Crimes (Aviation) Act 1991.

As you have heard, the first amendment reinstates the maximum penalty of two years imprisonment for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979—the penalty provision having been inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. No substantive change is made to the nature of the offence; however, the penalty provision will apply—and I say this in caps and bold—retrospectively to the date when the penalty was repealed, so that individuals convicted of the offence since 2006 are not able to escape punishment.

Of course, this rationale is entirely understandable. But—as you would know, Mr Acting Deputy President Murray—Democrats as a rule get a little suspicious of retrospectivity in law, particularly in relation to criminal law, and we always advise that it should be approached with extreme caution, especially in relation to offence provisions. However, I have been advised by the office of the Minister for Home Affairs that no criminal prosecutions have previously failed as a result of this anomaly and no prosecutions are afoot or contemplated at the present time. In these circumstances, therefore, the Democrats will not oppose the amendment, which has arisen as a result of a legislative error made by the previous government. It is important that criminal acts do not go unpunished as a result of poor legislative practice, particularly where the elements of the relevant offence have remained clearly set out, and the amendment merely corrects the omission of a note detailing the penalty for that offence.

The second measure in the bill amends part ID of the Crimes Act 1914, which provides a review mechanism for the National Criminal Investigation DNA Database. Again, you have heard Senator Brandis outline the rationale in relation to this. As the legislation stands, a follow-up review should have occurred in 2005, based on a requirement that a subsequent review be held within two years of the completion of the first review. However, in 2005 the database was only partially operational; therefore, there was little point in conducting a review at that stage. Senator Brandis referred to the idea of it being optimum that there is a body of cases et cetera. We accept and agree with that rationale. However, the amendment provides that the review should now commence no later than 1 November next year to allow time for the database to be fully operational when the review occurs. The Democrats do support this commonsense amendment and we do also hope that when the review occurs it reveals a functional and useful DNA database.

The third and final measure of the bill amends the Crimes (Aviation) Act 1991 to make reference to the Criminal Code 2002 (ACT) in its application to the Jervis Bay Territory. Under the Jervis Bay Territory Acceptance Act 1915, the laws of the ACT, including common law offences, apply in the Jervis Bay Territory, provided they are not inconsistent with Jervis Bay ordinances in force at the time. I told you there had to be a way to make this sound more exciting. Once the ACT Criminal Code came into force in 2003—