Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I mentioned in my second reading contribution that the Australian Greens have significant concerns about the proposed new section 319. I want to going to a bit more detail about those concerns now. The government is effectively proposing to trade away people's rights to a fair trial in order to expedite proceeds of crime proceedings. This concern is held not just by the Australian Greens but by many organisations, including, as I said in my speech on the second reading, the Victorian Bar and Criminal Bar Association, the Law Council of Australia and the Australian Human Rights Commission.

I would like to place a few detailed matters on the record from some of those organisations. The Australian Human Rights Commission, in its submission to the Senate Legal and Constitutional Affairs Legislation Committee on 6 January this year, said:

The second issue of concern for the Commission is that some of the grounds which the proposed new s 319 would require a court to ignore are highly likely to result in prejudice to an accused person and increase the risk that their trial would not be fair.

The Law Council of Australia's submission makes their view very clear, stating:

A relevant question that may be required to be answered is whether limiting the discretion of a court as to when it may order a stay of proceedings in the manner proposed by the Bill is accompanied by adequate safeguards to ensure the:

• Constitutionally protected fair trial of an accused will not be prejudiced; and

• The court retains power over its processes thereby preserving the separation of powers as required by the Constitution.

The Victorian Bar and Criminal Bar Association submission is critical of the explanatory memorandum circulated by the government in support of this legislation. Paragraph 34 of their submission states:

Paragraph 49 of the Explanatory Memorandum states:

"The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (i.e. the prejudice that may result to a concurrent or subsequent criminal trial)."

Paragraph 35 states:

It is submitted the proposed amendments do not achieve that purpose. To the contrary, the proposed amendments proscribe the Court's inherent power to order a stay where there is a risk the concurrent POC proceedings would prejudice a pending criminal trial.

Paragraph 36 then states:

It is submitted the proposed amendments amount to a grave infringement of the rights of an accused to a fair criminal trial. The proposed amendments will compel a person charged with a criminal office, who wishes to defend POC proceedings, to give evidence in the POC proceedings in advance of his or her criminal trial about matters to which the criminal trial relates.

When you have a good look at proposed new section 319, you see that it does give rise to significant questions for the government. During the committee stage of this bill, I would appreciate a response to these questions from the minister if possible.

We need to place on record that we understand that the first part of proposed new section 319 provides that a court may stay proceedings under the Proceeds of Crime Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so. However, proposed new section 319 then goes on to provide a list of grounds on which a court must not stay Proceeds of Crime Act proceedings. This is the first question I have for the minister: is it the government's intent that, even though a court may decide that it has grounds to stay proceedings because it is, in the court's view, in the interests of justice to do so, it is prevented from staying proceedings on the grounds listed in subsections (2), (3) and (4) of proposed new section 319?

If it is the case that the court cannot stay proceedings on grounds that are listed in (2)(a), (2)(b), (2)(c)(i) and (2)(d), even if the court believes that it is in the interests of justice that the proceedings be stayed, I think the government has a constitutional issue on its hands, and that is the constitutional protections around the right to a fair trial in this country. That is the first question: is it the government's intent that the grounds laid out in section 319(2) would prevent a court from staying proceedings, even if the court formed a view that those grounds constituted reasons to stay the proceedings in the interests of justice?

The other question I would like to ask while I am on my feet is: can the minister provide any advice to the Senate on the grounds it might be open to the court to stay proceedings in the interests of justice? To describe the provisions of the proposed new section 319(2) as broad does them a disservice. They are massively wide grounds that the government is seeking courts from using to stay proceeds of crime proceedings. In the new section 319(2) (c)(ii), it becomes clear from reading that subsection that the court must not stay proceeds of crime proceedings on the ground that 'evidence is, or may be, relevant to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced'. Basically, the court is going to have to form a view of the likelihood of criminal proceedings which may or may not be commenced at some time in the future before it can to decide whether that subsection becomes a trigger for the substantive provision in subsection (2), which is that the court must not stay Proceeds of Crime Act proceedings on those grounds.

To describe them as broad, as I have said, is doing them a disservice; they are incredibly broad provisions. They are so broad that I am forced to ask the minister: can he possibly come up with a reason that a court may reasonably consider it in the interests of justice to stay proceedings that is not covered by the proposed new section 319(2)? Can we collectively in this place conceive of a reason that proceedings can be stayed by a court because the court considers that it is in the interests of justice to stay proceedings that are not caught by subsection (2)? I am personally struggling to come up with a reason that a court might reasonably use that it is in the interests of justice that proceeds of crime proceedings be stayed that has not been ruled out by the proposed section 319(2). That is how broad that subsection is.

I would also like an answer, Minister, if possible—I am not asking for the Solicitor-General's advice to be tabled—to the question: was the constitutionality or otherwise tested through the Solicitor-General prior to this legislation being introduced? If so, what matters were raised? It was the view of some submitters to the committee process that this legislation could lead to circumstances where a right to a fair trial, which is a fundamental right in this country, would be prejudiced. That is something we ought to avoid at all costs in this place. I heard earlier today from the minister who has carriage of this bill reference to the fact that stays of Proceeds of Crime Act proceedings can frustrate the intent of the Proceeds of Crime Act legislation, but, surely, it is more important that someone get a fair trial in this country than that those proceedings be handled expeditiously so that the Commonwealth can get its hands on any assets which may be delivered to the Commonwealth off the back of proceeds of crime act proceedings.