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

I am genuinely not trying to be difficult here. A couple of times now in response to that question, you have referred me back to the proposed new section 319(1), which you described as—I do not think I am misquoting you—an overarching discretion of the court. It might be worth referring you to the Australian Human Rights Commission's submission to the Senate Legal and Constitutional Affairs Committee section 5.1, which starts at paragraph 33. It is actually headed: Ambiguity in drafting. This is the point I am trying to make. What I am trying to do here is place on the record the government's intent because that may become a question in subsequent High Court proceedings. So is it the government's intent that a court that is hearing a Proceeds of Crime Act matter can in fact stay proceedings on grounds contained in the proposed new section 319 subsection 2? Does that overarching discretion of the court retained even on grounds that are listed in proposed subsection 2—in other words, does proposed 319(1) override proposed 319(2) or does proposed 319(2) override proposed 319(1)?

My reading of this is pretty clear, as someone who has sat for through an awful lot of similar debates in the Tasmanian parliament for well over a decade as the Greens justice spokesperson. My reading of this legislation is that the court retains an overarching discretion to stay proceedings but not on any of the grounds contained in the proposed new section 319(2). That would be my reading of this legislation. I am simply trying to distil the government's intent here. Is it the government's intent that a court cannot stay proceedings on grounds listed in proposed section 319(2) even if it believes that it is the interests of justice to stay those proceedings?