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

I thank the minister sincerely for his responses, particularly his willingness to make it clear to the Senate that there was advice sought from the Solicitor-General and that the government has taken comfort from the advice. I will place a couple of matters on the record in response to the minister and then perhaps ask a couple of follow-up questions. Firstly, I make it very clear that I may be a relatively new member of this place but I am well aware that there is nothing that would prevent me from moving amendments to a piece of legislation even if, as is the case in this circumstance, I was the member of a committee that had reported on a piece of legislation without a dissenting report. Parliamentary committees are here to advise the parliament, not to dictate to us what we should do.

I have to take slight issue with the minister's language. These are not guidelines—and that is in fact the problem here. These are not guidelines for courts; this is not a list of things that a court must consider before determining whether or not Proceeds of Crime Act proceedings should be stayed. They are not at all a list of matters a court must consider—these are a list of grounds on which a court must not stay Proceeds of Crime Act proceedings. That is very different from guidelines. What the Greens are asking the Senate to do here tonight is agree to include in the Proceeds of Crime Act 2002 a list of grounds on which a court must not stay Proceeds of Crime Act proceedings.

Some might think that we are having a semantic debate here, but I do not think we are having just a semantic debate. I want to gently remind you, Minister, of one of the questions you may not have retained—because you are a bloke!—which was that I asked for clarification on the legislation on this hypothetical ground: if a court formed a view that in the interests of justice it should stay Proceeds of Crime Act proceedings on one of the grounds contained in subsection (2), is it able to act in what it considers to be the interests of justice or not?

I think you will find the answer to that is 'no'. If that is the case, we need to be very clear about what we are doing here. We are preventing a court in Australia from acting in what it believes is the interests of justice. That is almost Monty Pythonesque in its absurdity. You are basically saying to a court: 'You, Justice, can form a reasonable view that in the interests of justice certain proceedings should be stayed, but we are actually going to prevent you from doing that by inserting a list of grounds on which you cannot stay Proceeds of Crime Act proceedings even if you think such a stay is in the interests of justice.' And that is the matter I am trying to explore here, because that is a very serious matter that you are asking the Senate to consider here. Effectively, you are asking us to agree with your proposal that a court be prevented from staying proceeds of crime proceedings even if that court has reasonably arrived a view that it is in the interests of justice to stay the proceedings. I can see you have a response, Minister, so I will sit down and hand over to you.