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

I will not move it now—thank you, Senator Collins—because amendment (2) is consequential on the first proposition being accepted by the chamber. I make the point that if this proposition is not supported then I will not move amendment (2). It is our very firm policy position that proposed section 319 be deleted from this bill. In support of that I will very briefly read into the Hansard the view of, firstly, the Victorian Bar and Criminal Bar Association. They said in a submission to a parliamentary committee dated 20 January this year in paragraph 43:

… the Criminal Bar Association opposes the introduction of s 319(2)-(6).

I will also read in the view of the Law Council of Australia. In a submission to a parliamentary committee dated 7 January this year they said:

The Proceeds of Crime Act 2002 (Cth) amendments in Schedule 1 should not be enacted.

Also the Australian Human Rights Commission made a submission to the Senate Legal and Constitutional Affairs Legislation Committee, the same committee to which the previous two submissions were made. Their submission dated 6 January 2016 has as recommendation 1:

The Commission recommends that Schedule 1 of the Bill not be passed.

Even though the three organisations have expressed their opinion in slightly and technically different ways, the effect of all of those submissions is to at the very least delete proposed new section 319(2), which establishes the grounds on which a court must not stay Proceeds of Crime Act proceedings.

In summary, we have concerns about this because we believe, as do various submitters to Senate committees, that passing these provisions is highly likely to prejudice the right to a fair trial in this country in certain circumstances. We think this is a step too far. We believe that, in its haste to get its hands on financial or other resources through Proceeds of Crime Act proceedings, the government is compromising the potential for a right to a fair trial in this country in certain circumstances, specifically where there are already criminal proceedings underway that deal with the same matters that are being dealt with in the Proceeds of Crime Act proceedings. We believe that, unfortunately, the passage of this legislation is highly likely to mean that Australians who are facing criminal charges but have not yet been found guilty and therefore, under our justice system, are innocent will have their right to a fair criminal trial prejudiced because a court hearing Proceeds of Crime Act matters is not able to stay Proceeds of Crime Act proceedings even if the court forms the view that it is in the interests of justice to do so.

We have seen time after time the erosion of fundamental principles in our community—human rights, civil rights and citizens' rights—that many Australians have fought and died to protect and enhance during the history of our country. They are being eroded now in the name of the fight against crime and terrorism, with no evidence being placed before the Australian people or the Commonwealth parliament that what we are doing will make us as citizens of this country any safer as a result. We have seen it around Citizenship Act amendments in recent times, we have seen it around legislation that gives increased powers to security agencies in this country over a number of years now, and we are now seeing it in relation to matters associated with the delivery of justice in this country.

It is fundamental in this country that, in the interests of justice, there should be a separation of powers. Make no mistake: this is the parliament seeking to reach its hands into judicial matters that ought to be left to the courts in the context of deciding what the interests of justice are in particular circumstances and, in fact, how the courts should act to deliver justice. So this offends the separation of powers principle, it potentially falls foul of our constitutionally guaranteed right to a fair trial in this country, and it potentially interferes with the constitutional right of courts to determine how best to deliver justice in our country.

So we have strong concerns. These concerns are mirrored by the stakeholders that I have just referred to, and on that basis we commend our amendment to the Senate.