Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present the 13th report of 2006 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 15 of 2006, dated 6 December 2006.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 15 of 2006 and 13th report of 2006, I wish to draw the attention of the Senate to the amendments made to the Defence Legislation Amendment Bill 2006 and proposed amendments to Anti-Money Laundering and Counter-Terrorism Financing Bill 2006. These amendments raise no issues within the terms of reference of the committee. However, in both cases, the amendments address concerns raised by the committee in earlier Alert Digests and reports and the committee wishes to acknowledge the positive response taken by each minister in response to these concerns.

In commenting on the Defence Legislation Amendment Bill 2006, the committee noted that the provision for the constitution of a military jury, and the manner in which questions are to be determined, differed substantially from the constitution and operation of civilian juries in criminal matters. The bill provided that the classes of offences to be heard by a military judge and jury could potentially include offences of treason, murder and manslaughter, and that a military jury was to be composed of six members and was to determine questions of guilt on the agreement of a two-thirds majority. The committee expressed concern that this represented an infringement of individual rights and sought advice of the minister as to the extent to which the rights of the individual had been balanced against the particular needs of the military justice system in drafting these provisions.

The minister responded that he had noted the comments of the committee and had instigated a specific amendment to address the concerns raised. The committee notes that on 29 November 2006 the House of Representatives amended this bill to provide that there will be a 12-member jury in a trial for a class 1 offence and a six-member jury in a trial for a class 2 or class 3 offence. These amendments further provide that a decision of a military jury is to be unanimous or by a five-sixths majority in certain circumstances. On behalf of the committee, I would like to thank the minister for this positive response to the concerns of the committee.

In commenting on the Anti-Money Laundering and Counter-Terrorism Financing Bill 2006, the committee expressed concern about certain strict and absolute liability offences. In relation to the offences of strict liability, the committee was concerned that the explanatory memorandum to the bill did not set out a clear justification for the imposition of offences. The committee noted that A guide to framing Commonwealth offences, civil penalties and enforcement powers advises that:

Strict or absolute liability should only be used in an offence where there are well thought out grounds for this.

The minister responded with a detailed and clear explanation for the inclusion of strict liability in each case and undertook to make a correction to the explanatory memorandum to include this explanation. The committee notes that the minister has since circulated a correction to the explanatory memorandum. The committee also notes that the minister has circulated a correction to the explanatory memorandum on the comments of the committee on the abrogation of the privilege against self-incrimination in certain provisions. The committee expressed concern that, whilst the explanatory memorandum explained the effect of those provisions, it did not justify their inclusion.

Finally, the committee expressed concern at the inclusion of certain absolute liability offences and sought advice from the minister as to the justification for their inclusion. The minister responded that the provisions were intended to address a knowledge of law issue. The committee was not persuaded that this was sufficient justification for the inclusion of absolute liability offences and sought further advice from the minister. The minister responded that, after considering the comments of the committee, he accepted that the application of absolute liability in these particular provisions appeared inconsistent with applying strict liability to other provisions in the bill with the knowledge of law issues. The minister has undertaken to amend these provisions, replacing the application of absolute liability to the relevant elements with strict liability. Again, on behalf of the committee, I would like to thank the minister for his constructive responses to the concerns of the committee.

Question agreed to.