Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I move:

That the committee agrees to the amendments made by the House of Representatives to the bill.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Given the time, I will deal with just the broad areas that I want to touch upon in the Crimes Amendment (Bail and Sentencing) Bill 2006. In the other place the government has amended this law on the basis that it seems to be better to have bad consistent law than to have bad inconsistent law. But I want to make one thing clear: Labor’s view is that this bill represents bad law. Labor was opposed to the removal of the reference to cultural background in bail and sentencing procedures when we debated the bill previously, and we are opposed to the additional references that will now be removed.

Let me explain. I raised the issue of section 19B when we debated the bill previously. What was exposed, particularly with the minister’s inability to provide anything that resembled an explanation for the inconsistency, was just how rushed this bill and ill-considered this legislation is. What it also exposed was the true motive. The true motive of this bill is to divert attention from the failings of the Minister for Families, Community Services and Indigenous Affairs and those of the government more widely, specifically in this area. If this exercise were actually about improving the problems in the law, the government would have taken a thorough and consistent approach to drafting the legislation in the first place. It also would have supplied a written explanatory memorandum that laid the case for change and provided evidence to support it. I suspect that it would have also consulted a lot more broadly.

But, of course, that is not what happened. Instead, we witnessed the Minister for Justice and Customs mumbling through a justification for the inconsistency, only for him to turn and around and say, ‘The Attorney-General will address the matter when the bill reaches the House.’ Then, when the Attorney-General did turn to the matter with his amendments, it turned into an even bigger fiasco. The additional three amendments moved in the House of Representatives dealt with forensic procedures and had nothing to do with bail and sentencing. As such, it seems to me that they are unrelated to the primary purpose of this bill.

As the explanatory memorandum states, the purpose of this bill is to amend the sentencing and bail provisions in the Crimes Act 1914 in accordance with the decision made by the Council of Australian Governments on 14 July 2006 following the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities on 26 June 2006. Yet we now have a bill which actually amends the forensic procedures provisions as well, even though that is not its stated purpose and does not deal with one of those matters that could reasonably come under the heading of the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities of the Council of Australian Governments. I think that lie has been exposed.

This government does not seem to be able to grasp the concept that forensic procedures are not performed by courts during bail and sentencing procedures. It appears that the Attorney-General, or one of his staff, decided to use a computer to search the Crimes Act for all references to cultural background—which was a little bit over the top—and prepared amendments to remove their effect without employing the most cursory examination as to their context within the legislation. Not only are these amendments unrelated to the bill; they were not considered by the Senate committee. In truth, if he wanted to expand the bill, it should have been referred back to the Senate Legal and Constitutional Affairs Committee to give it an opportunity to amend the bill accordingly—or he could have tried consulting right from the word go.

The amendments should be opposed in any instance, even by the government’s backbench. My colleague in the other place Ms Nicola Roxon, the shadow Attorney-General, did ask the Attorney-General whether he would refer these new measures to the Senate Legal and Constitutional Affairs Committee for inquiry—a request, as I understand it, he declined. I ask the Minister for Justice and Customs to consider that request again.

As with the introduction of cultural background to the bail and sentencing procedures, it is worth looking at the history of the provisions that the government proposed to amend. These particular references to cultural background which relate to forensic procedures were introduced as part of the Crimes Amendment (Forensic Procedures) Bill 1997 under the Howard government. That is right—it was the current government that introduced them. Mr Daryl Williams, who was the Attorney-General at the time, had some very interesting things to say about that bill during the debate in the House. In particular, he boasted about its basis on:

... the model Forensic Procedures Bill which was widely circulated for comment to about 600 groups and individuals, representing many interests ...

If the government had consulted on this bill, that would have turned up pretty quickly. It seems to me that it missed it completely. Many of those consulted on the model at that point were not given the same courtesy by the government on this occasion. Indeed, the Senate committee condemned the government for its failure to properly consult, even on the changes.

It really does demonstrate how arrogant and out of touch this government is becoming that it can go from consulting widely to not consulting at all in less than 10 years. When it started this, it consulted widely. It is now at a place where it has decided to junk consultation. It seems to me that the government’s true colours and contempt for the community have been exposed even more since it gained control of the Senate. The Prime Minister said that he would not let control of the Senate go to his head. Clearly, that is exactly what has happened.

Mr Williams also spoke on the many safeguards in the bill to protect the rights of individuals, with particular provisions for Aboriginal persons and Torres Strait Islanders. That just about says it all. The Attorney-General of the first Howard government was seeking to promote specific safeguards for Aboriginal people and Torres Strait Islanders. Now the Attorney-General and minister for justice of the last Howard government are removing those exact same safeguards.

Further exposing these fraudulent amendments for what they are is the fact that the government has only just passed legislation specifically dealing with forensic procedures, that is, the Crimes Act Amendment (Forensic Procedures) Bill (No. 1) 2006, which was introduced in June and passed by the Senate in October. I ask the government: if these changes are so necessary, why did you not pick them up when making those other changes specific to forensic procedures?

I do not expect the government to attempt to explain themselves in that regard. I almost hope that they do not because, at every turn in this sorry debate that they have opened their mouths and tried to react, their standing has deteriorated even further. They started with a pretty ridiculous position—this bill—and it has just got worse and worse as they try, in their way, to fix it. The only fix is to get rid of it, quite frankly. It is too late for the government or some of their backbenchers to do the right thing and sink this bill. They are not going to shift. This bill does not belong on our statute books. The minister here knows it and Mr Ruddock knows it as well.

At a time when we should be focusing our minds on finding practical solutions to deal with violence and abuse in Indigenous communities, we have instead had to deal with this blatant attempt to divert attention from the failings of Minister Brough. On that basis, the government should truly be ashamed. I am not going to take up too much more time of the Senate. I think this is an appalling position that the government is putting forward and these amendments should be rejected. Quite frankly, this bill should have been rejected.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The question was asked: why are we amending section 19B of the Crimes Act? As Senator Ludwig has pointed out, during the debate that we had in the Senate on 8 November this year, Senator Ludwig asked why the government was amending section 16A of the Crimes Act but not amending section 19B. I took that on notice at the time. That position was considered and examined by the government, which agreed that it is appropriate to amend section 19B as well as section 16A to bring consistency to the sentencing provisions in the Crimes Act.

As well as that, there are amendments on forensic procedure. We are removing the term ‘cultural background’ from the forensic procedure provisions. The reason for that is that the cultural background of a suspect should not be a factor in determining whether or not they provide a forensic sample. It is not acceptable that there be a possibility, even a remote one, that a person from one ethnic group can avoid undergoing a procedure that provides evidence which may lead to their prosecution and conviction when a person from another ethnic group would have no choice but to undergo that forensic procedure.

Of course, when we are looking at forensic procedures such as those to do with DNA, they are often relevant to violence offences. I would suggest that in violent sexual offences and sexual offences generally the forensic evidence is an essential and common feature. Certainly, the question has been asked as to why we are taking out ‘Aboriginal customary beliefs’. The government believes there is no need to keep the current references to ‘Aboriginal customary beliefs’ in the forensic procedure provisions. The government has received legal advice that the term ‘religious beliefs’ is wide enough to pick up any type of religious or customary belief.

By amending these provisions in the Crimes Act, the Commonwealth is demonstrating leadership in an important area and is continuing to improve the criminal justice system for all Australians. I think these issues were canvassed by the Attorney-General in the House of Representatives. It is important, if the government sees that it can improve its legislation, even while it is before the parliament, that that be done, and that is what the government is doing in this case.

Senator Ludwig raised this issue by way of a question in the previous debate we had. The government have looked at it and are of the view that it needs to be amended. Accordingly, we have done that. As I said at the time, cultural background can still be considered under the term ‘antecedents’, which is broad enough for that to be included. We do not believe the term ‘cultural background’ should have that special significance. Having it in the legislation in that manner could lead to it having undue significance. I think that in the circumstances it was appropriate that the government act, and we have.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I have just one question: in terms of the forensic procedures, is that a matter that was touched upon by the Royal Commission into Aboriginal Deaths in Custody and recommended for changes in the Crimes Amendment (Forensic Procedures) Bill 2001? Does that accord with what you are doing now? Or is this in fact cutting across what was originally recommended in the Aboriginal deaths in custody report? Is what you are doing now removing some of the safeguards that were mentioned in that royal commission report?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The advice I have is that the forensic procedures changes were not as a result of the Aboriginal deaths in custody inquiry, which was in fact some years ago now. DNA was not really such a major consideration then as it is now, so they were not as a result of that. The forensic procedures bill is based on the Model Forensic Procedures Bill. As such, the safeguards are there. This bill does not change that. I think it is essential that we remember that there are safeguards; it is not as if we are just throwing them away. To answer Senator Ludwig’s question, my advice is that these forensic procedures were not as a result of that Aboriginal deaths in custody inquiry.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Forensic procedures are not limited to DNA; forensic procedures can go back to the pre-DNA world, if I can call it that. But the other, broader question in terms of the Model Forensic Procedures Bill is whether these amendments are consistent with it. Or have you now removed those provisions—which would not be in accordance with the Model Forensic Procedures Bill?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

As I think I said earlier, this was done in accordance with the Model Forensic Procedures Bill. It is consistent with that. So we are saying it is not inconsistent. It has not thrown away any safeguards. The format of it is consistent.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I just want to make this plain. The reference to ‘cultural background’ is not in the Model Forensic Procedures Bill—is that what you are intimating to the Senate?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

That is a different question, and to that extent I would have to check. I will have to take that on notice. But, certainly, in relation to the question as to whether officials will be able to consider religious beliefs, the answer is yes. A constable, senior constable or magistrate will still be able to consider religious beliefs where appropriate in deciding whether there is a less intrusive way of obtaining a person’s DNA. We believe that covers it. There are a range of options available for collecting forensic evidence. If a person holds a religious belief then that should be a factor in deciding which of those options should be chosen. So that will be considered. This draws an appropriate balance between protecting religious beliefs on the one hand and enforcing the criminal law on the other.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the committee agrees to the amendments made by the House of Representatives to the bill.

Question put.