Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Hansard source

I thank the senator for the questions—they were comprehensive—but in my answer, being a bloke, I might not have picked up on all of them. So if you can ask the question again for anything I have not covered, I would appreciate that. You start of making the assertion that we seek to remove the rights to a fair trial. I hope that was just a glib throw-in there, because that is not what we are motivated by. We are actually motivated to ensure that if there is a particular mischief where someone can continually delay proceedings and, whilst those proceedings are being delayed, they are separated by some sort of lean being placed over disposal of assets or spending of assets and that has seen to be done, then we need to ensure that the court has some guidelines around the nature of the circumstances where a stay in proceedings may take place.

I note that Senator McKim has quoted from the Victorian Bar Association, and I note, without giving him too hard a time on it, he is in fact a member of the committee. I looked carefully at the committee report and I note there is no dissenting report from the Greens. That is okay, we are all busy in this place, so I am not giving you too tough a time. I understand this amendment arrived just before question time, and sometimes it is difficult to deal with these things. This is quite a simple amendment to speak to, but given the amount that the committee put into this, it has not been done in a way that has been glib or flippant. A lot of people have put a lot of time into this. Two committees, both the Legal and Constitutional Affairs Committee and the Senate Selection of Bills Committee, reported on the bills. The Senate Scrutiny of Bills Committee provided further information that has now been included as an addendum to an explanatory memorandum to explain those matters. We have comprehensively looked into this.

The challenge is, fundamentally, that if we accepted the amendments the Greens are putting forward it would protect the mischief that this legislation seeks to remove, which is why we would not support them. But we should look to the answers to Senator McKim's specific questions so that we can make that case. He asks if the court could use its discretion on all matters not described. The most important point is that the proposed subsections 319 (2), (3), (4) and (5), which are all the matters he was talking about, are in fact matters that would limit but not remove the overarching discretion of the court under proposed subsection 319(1) to stay proceedings. So it only limits it. The proposed changes would not remove the discretion to grant a stay, but they have the effect of ensuring that a person who is seeking a stay of proceedings has to explain to the court the risk of prejudice in the circumstances, rather than simply stating that they or another person may face charges or may have to give evidence in relation to a criminal matter at a future date. So they cannot just assert that—they have to require a person seeking that to explain it to the court. It is quite clear that it does not remove the overarching discretion of a court under proposed subsection 319(1).

Senator McKim also mentioned that the court may reasonably have a view not to stay proceedings and what were the circumstances under which that would happen. As I have said, they are not prescribed. Outside of the matters in section 319, which describes what a person is required to provide, the legislation is silent on the remainder. The court would have complete purview over the remainder to make a decision on those matters. Constitutionality has been tested, and I am advised it has been tested with the Solicitor-General. The government takes comfort from that advice.