David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I move amendment (2) on sheet 7815:

(2) Schedule 1, item 8, page 19 (lines 21 to 26), omit paragraph (4)(b), substitute:

  (b) does not apply in relation to:

     (i) a conviction of a person before the commencement of this item; or

     (ii) a conviction of a person on or after the commencement of this item in relation to an act or thing that was done wholly before the commencement of this item.

This amendment seeks to amend item 8 in schedule 1 of the bill to remove the retrospective application of the criminal law. I should note that, although the retrospectivity as it stands is limited and only applies to a small number of people, who will attract limited public sympathy, it is contrary to the rule of law and to fundamental principles of the common law. Chair, I am having trouble hearing myself. I am just wondering if you could remind senators of the need for silence.

The CHAIRMAN: I certainly can. The Senate needs to come to order. There are a lot of people here. Senator Leyonhjelm has the call.

I think I was making some exceedingly good points, and I do not want have to repeat them.

The retrospectivity, I acknowledge, is limited and only applies to a small number of people, who will attract limited public sympathy, but it is contrary to the rule of law and to fundamental principles of the common law. The amendment, as I have drafted it, applies not only to a conviction secured after the commencement of the legislation but also to conduct that takes place after commencement. The point is that Australians considering their actions now should be able to weigh up the consequences of that action based on the law as it stands now. The fact that I need to point out such a basic principle of natural justice concerns me greatly.

Retrospective law of this type is simply not necessary, as the government already has a suite of powers to ensure that people who have served their sentences for terrorist offences are monitored. In the case of Mr Collaery that Senator Xenophon raised earlier this evening, his only risk is attributable to the retrospectivity. There would be no risk to that gentleman if the law did not apply retrospectively. I also make the point that Senator Brandis will not be the Attorney-General forever, but the law will apply forever, unless it is repealed or my sunset clause is appealed. And this law is not just about terrorism; it does include espionage. It is better not to risk injustice attributable to retrospectivity in a case like that.