Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Hansard source

I table two supplementary explanatory memoranda relating to the government amendments to be moved to this bill. The memoranda were circulated in the chamber on 13 May and on 16 September 2009.

By leave, I move government amendments (1) to (29) on sheet PM308:

(1)    Schedule 1, item 2, page 11 (lines 4 and 5), omit “, or alternatively, order pre-trial disclosure (see section 23CD)”, substitute “order pre-trial disclosure (see subsection 23CD(1))”.

(2)    Schedule 1, item 2, page 11 (line 15), omit “section 23CD”, substitute “subsection 23CD(1)”.

(3)    Schedule 1, item 2, page 12 (line 1), omit the heading to section 23CD, substitute:

23CD  Pre-trial and ongoing disclosure

(4)    Schedule 1, item 2, page 12 (line 2), before “After”, insert “(1)”.

(5)    Schedule 1, item 2, page 12 (after line 19), at the end of section 23CD, add:

        (2)    The accused must give the following to the prosecutor as soon as practicable after the accused’s first pre-trial hearing before the Court in relation to the indictment:

             (a)    if at the trial the accused proposes to adduce supporting evidence of an alibi—notice of particulars, prepared in accordance with the Rules of Court, of that alibi;

             (b)    if at the trial the accused proposes to adduce supporting evidence that the accused was suffering from a mental impairment (within the meaning of section 7.3 of the Criminal Code)—notice of particulars, prepared in accordance with the Rules of Court, of that impairment.

Note:   A party may also be required to disclose additional information as a result of other laws (for example, subsection 44ZZRO(2) of the Trade Practices Act 1974).

(6)    Schedule 1, item 2, page 13 (line 33), before “The”, insert “(1)”.

(7)    Schedule 1, item 2, page 14 (line 5), omit “basis”, substitute “general basis”.

(8)    Schedule 1, item 2, page 14 (line 11), omit “basis”, substitute “general basis”.

(9)    Schedule 1, item 2, page 15 (lines 1 to 8), omit paragraphs 23CF(i) and (j).

(10)  Schedule 1, item 2, page 15 (after line 12), at the end of section 23CF, add:

        (2)    Paragraph (1)(a) and subparagraph (1)(b)(ii) do not require the accused to disclose details of the accused’s proposed defence.

(11)  Schedule 1, item 2, page 15 (line 23), omit “23CF(k)”, substitute “23CF(1)(k)”.

(12)  Schedule 1, item 2, page 16 (line 20), omit “section 23CD”, substitute “subsection 23CD(1)”.

(13)  Schedule 1, item 2, page 16 (line 23), omit “subsections (2) and (3)”, substitute “subsection (2)”.

(14)  Schedule 1, item 2, page 17 (line 3), omit “or”.

(15)  Schedule 1, item 2, page 17 (lines 4 to 6), omit paragraph 23CH(2)(f).

(16)  Schedule 1, item 2, page 17 (lines 12 to 14), omit subsection 23CH(3).

(17)  Schedule 1, item 2, page 18 (lines 18 and 19), omit “A copy or details of any information, document or other thing is not required to be given under an order under section 23CD”, substitute “Nothing in this Subdivision requires a copy or details of any information, document or other thing to be given”.

(18)  Schedule 1, item 2, page 20 (lines 1 to 34), omit section 23CL, substitute:

23CL  Effect on legal professional privilege and other privileges and duties etc.

Litigation privilege not an excuse for failing to comply with pre-trial disclosure requirements

        (1)    A party is not excused from disclosing material under this Subdivision on the basis of litigation privilege claimed by the party in relation to the material.

Note:   The party can still be excused from disclosing material on the basis of advice privilege (that is, privilege that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 118 of the Evidence Act 1995).

        (2)    This Subdivision does not otherwise:

             (a)    abrogate or affect the law relating to legal professional privilege; or

             (b)    amount to a waiver of legal professional privilege.

Note:   This means, for example, that legal professional privilege will apply for the trial.

Other privileges and duties unaffected

        (3)    This Subdivision does not abrogate or affect:

             (a)    the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004; or

             (b)    the law relating to public interest immunity.

        (4)    This Subdivision does not abrogate or affect the law relating to any duty of a person investigating the accused to ensure that information and other things are disclosed to the prosecutor or the accused.

Definitions

        (5)    In this section:

legal professional privilege includes privilege (however described) under Division 1 of Part 3.10 of the Evidence Act 1995, or a similar law of a State or Territory.

litigation privilege means privilege (however described) that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 119 of the Evidence Act 1995.

(19)  Schedule 1, item 2, page 21 (lines 1 to 38), omit section 23CM, substitute:

23CM  Consequences of disclosure requirements

Orders to ensure non-compliance does not unfairly affect the other party

        (1)    The Court may make such orders as it thinks appropriate to ensure that:

             (a)    any failure by the prosecutor to comply with an order under subsection 23CD(1) does not cause unfairness to the accused; and

             (b)    any failure by the accused to comply with an order under subsection 23CD(1) does not prejudice the prosecutor’s ability to efficiently conduct the prosecution.

        (2)    However, the Court must not make an order under subsection (1) if it would result in an unfair trial.

Certain evidence cannot be adduced at trial unless there is earlier disclosure

        (3)    If the accused fails to comply with subsection 23CD(2) in relation to an alibi, the accused may only adduce evidence of the alibi with the leave of the Court.

        (4)    If the accused fails to comply with subsection 23CD(2) in relation to a mental impairment (within the meaning of section 7.3 of the Criminal Code), the accused may only adduce evidence that the accused was suffering from the impairment with the leave of the Court.

(20)  Schedule 1, item 2, page 22 (lines 4 and 5), omit “in accordance with an order under section 23CD”, substitute “under this Subdivision”.

(21)  Schedule 1, item 2, page 22 (line 12), omit “order under section 23CD was made”, substitute “entrusted person obtained the protected material”.

(22)  Schedule 1, item 2, page 23 (lines 2 and 3), omit “order under section 23CD was made”, substitute “entrusted person obtained the protected material”.

(23)  Schedule 1, item 2, page 23 (lines 10 and 11), omit “some or all of the material disclosed in accordance with an order under section 23CD”, substitute “any or all of the material disclosed under this Subdivision”.

(24)  Schedule 1, item 2, page 27 (lines 8 to 20), omit section 23DG, substitute:

23DG  Jury roll for a jury district

        (1)    The Sheriff may prepare a written jury roll for a jury district.

        (2)    A jury roll prepared under subsection (1) is not a legislative instrument.

(25)  Schedule 1, item 2, page 32 (lines 1 to 6), omit subsection 23DM(2) (including the notes), substitute:

        (2)    The jury list consists of:

             (a)    the names and addresses; and

             (b)    if readily available to the Sheriff—the dates of birth and sex;

of persons that the Sheriff selects from the jury roll for the applicable jury district.

Note 1:  The jury list may be supplemented under subsection (5).

Note 2:  The Sheriff may remove a person’s name from the jury list under section 23DO.

(26)  Schedule 1, item 4, page 82 (line 16), omit “significant”, substitute “material”.

(27)  Schedule 1, item 4, page 82 (after line 30), after subsection 58DB(2), insert:

     (2A)    An accused applying for bail during indictable primary proceedings is entitled to be granted bail during the proceedings in relation to an offence against either of the following sections of the Trade Practices Act 1974:

             (a)    section 44ZZRF (making a contract etc. containing a cartel provision);

             (b)    section 44ZZRG (giving effect to a cartel provision);

unless the Court decides otherwise after considering the matters mentioned in subsection (2).

(28)  Schedule 1, item 4, page 83 (line 22) to page 84 (line 3), omit section 58DD, substitute:

58DD  Bail to be stayed pending appeal

        (1)    If:

             (a)    the Court makes a bail order; and

             (b)    the prosecutor requests the Court to stay the bail order pending appeal;

the bail order is stayed by force of this section for 48 hours.

        (2)    If a notice of appeal from the bail order is filed within that 48 hours, the stay of the bail order continues by force of this section until:

             (a)    the appeal is finally disposed of; or

             (b)    the prosecutor withdraws the appeal in accordance with the Rules of Court; or

             (c)    a Full Court orders, under this subsection, that the stay be set aside;

whichever happens first.

        (3)    If the prosecutor makes a request under paragraph (1)(b), the appeal from the making of the bail order must be dealt with as quickly as possible.

        (4)    If a bail order is stayed by force of this section, the Court must, by warrant of commitment, remand the accused in custody for the duration of the stay.

        (5)    A warrant of commitment under subsection (4) may be signed by any Judge, the Registrar or any Deputy Registrar, District Registrar or Deputy District Registrar of the Court.

(29)  Schedule 1, item 21, page 103 (line 2), omit “section 23CD”, substitute “subsection 23CD(1)”.

The government also opposes schedule 1 in the following terms:

(30)  Schedule 1, item 32, page 105 (lines 21 to 24), to be opposed.

I will speak briefly to these amendments so that we can understand what we have in front of us. There were several issues raised during the Senate inquiry into this bill, which the Attorney-General has taken into account in drafting these amendments. The particular issues, if I could work through them, are as follows. In response to recommendation 1 of the committee report, the proposed section 23CF would be amended to clarify that the accused is only required to give a general indication of their reasons for disputing the prosecution case against them and is not required to disclose the details of a proposed offence. This addresses the committee’s concern that there is no infringement of the traditional rights of the accused. It would ensure that the appropriate balance between the rights of the individual and the public interest by requiring a meaningful disclosure by the accused without disclosing the details of any proposed offence, other than alibi or mental impairment.

It is very important to have a robust and effective pre-trial regime, given that the Federal Court will be dealing with trials for serious cartel offences. These are going to be long and complicated trials which will severely tax the resources of the court, and of course the resilience of the jury. The Federal Court must be given the tools it needs to ensure, as far as possible, issues are addressed and resolved before the case goes to trial so the trial proceedings can concentrate on matters which are genuinely in dispute and not waste time and effort on matters which are not really contested. It is appropriate in this context to impose a requirement on an accused person to say what matters are in dispute and, in general terms, why they are in dispute. That is not an unreasonable step. The bill does not take the next step, which would be to require the accused to give particulars of their proposed defence. That would be a major change to long-recognised rights of accused persons. That does not form any part of this legislation.

The second substantive amendment responds to recommendation 2 of the committee report by amending proposed subsection 23L to clarify that there is no general removal of legal professional privilege. Such privilege is temporarily overridden, in limited circumstances, at the pre-trial stage. It clarifies the effect of an order of the court requiring the accused to disclose a limited range of documents, such as draft witness statements and expert reports, but not legal advice. This is a limited and focused change to the traditional rules dealing with legal professional privilege. It will avoid any risk that a party who is required to disclose a document in the course of the pre-trial proceedings will be able to refuse to disclose it on the technical grounds that the document was prepared for use in the proceedings and is accordingly covered by litigation privilege. That is an important measure designed to protect the effectiveness and the integrity of the pre-trial process. However, it really does no more than make it clear beyond doubt that, if there is a requirement on a party to disclose a document in the pre-trial process, that obligation overrides any technical claim based on litigation privilege. The provision will have a minimal impact on accused persons because of the limited nature of the material which an accused person can ever be required to disclose at the pre-trial stage. As the bill stands, the only material an accused can ever be ordered to disclose is a copy of any expert report the defence intends to rely on at trial and details of any defence based on alibi or mental impairment. Even then, an accused person will still be able to claim privilege over a document if the document contains legal advice and the document is covered by advice privilege. The bill also makes it clear that the fact that a document has been disclosed in the pre-trial process does not amount to a waiver of any privilege that may apply to it. An accused person will still be able to rely on litigation privilege in other proceedings or at the trial.

In responding to recommendation 3 of the committee report, the Attorney-General has sought an amendment to proposed section 23CM to clarify the consequences of non-compliance with disclosure requirements. The amendment provides a discretion for the court to make such orders as it thinks appropriate to ensure full compliance with any disclosure order. The court’s discretion must not be exercised if to do so would result in an unfair trial. If the accused fails to give notice of a proposed defence of alibi or mental impairment, evidence of such matters may only be adduced with leave of the court. The Attorney-General has not accepted the committee’s recommendation to allow comment by the trial judge of failure to comply with a disclosure order, as this may impact adversely on the accused. If the bill were changed as proposed it would be open to the judge or prosecutor to comment to the jury when an accused has failed to comply with a pre-trial obligation, and there would always be the risk that the comment could suggest that the accused failed to comply because of a consciousness of guilt.

The final amendments, in relation to bail—relating to schedule 1, item 4—respond to recommendations 6 and 7 of the committee report, where section 58DA of the bill will be amended to clarify the test for a further application for bail by replacing the word ‘significant’ with the word ‘material’. Those words are generally synonymous, but the amendment will avoid any doubt about the intention under the bill. The Attorney-General also proposes to make it very clear that there is a presumption in favour of bail in relation to a serious cartel offence.

I will briefly touch on recommendations 4 and 5 of the committee report. Recommendations 4 and 5 have not been accepted. Recommendation 4 would mean that the court would only be able to receive additional evidence on appeal if the evidence was ‘fresh’ in the sense that it was not available at the trial. The problem is that there are situations where an appeal court should properly receive evidence that could have been led at the trial. An extreme example is where a convicted person argues that the defence counsel was incompetent and failed to call evidence that should have been called at the trial. So the recommendation would actually reduce the appeal rights that have traditionally been available to a convicted person.

Recommendation 5 of the committee would have meant that a party who wanted to appeal against an interim ruling made by a trial judge would be able to apply to the full court for leave to appeal. At present a party can only appeal against an interim ruling if they get leave from the judge who made the ruling. An appeal against an interim ruling has the potential to either delay or fragment the trial process. The current provision is designed to ensure that appeals are only ever brought against interim rulings in exceptional cases where the judge who made the rulings is satisfied that there is a proper basis for the issues to be tested on appeal. That recommendation would have given scope for a well-resourced defendant to delay a trial by making repeated applications for leave to appeal against rulings made in the course of the trial.

In relation to amendments (24) and (25), the first of these amendments will clarify the process of preparing jury roles and lists to avoid an argument that the bill assumes that certain regulations will be made before they have been approved. The second amendment is consequential and provides that alternative sources of information can be used if the regulations are not made. This is another issue that came to light when the bill was reviewed following the committee’s report.

Amendment (8) will make it clear that the prosecution does not have the power to give the court directions if a bail order is stayed pending appeal. This is another issue that came to light during the committee’s considerations. It would not be appropriate for the prosecution to give directions to a judge, and the bill will be amended to make it clear that the provisions do not have that effect.