Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

CRIMES LEGISLATION AMENDMENT (MISCELLANEOUS MATTERS) BILL 2008

Today I will be introducing the Crimes Legislation Amendment (Miscellaneous Matters) Bill which contains three minor but important criminal law amendments. However, I would like to begin by giving some broader context for this bill.

This is the first criminal law bill I have brought before the federal Parliament. I look forward to bringing forward many more, including a victims rights package and federal sentencing reforms. Each of these larger packages will be the subject of extensive public consultation.

In the mean time, there are some minor amendments that I felt needed to be pursued as a matter of priority. These are contained in this bill.

The first amendment will re-insert the maximum penalty of two years imprisonment for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979. The penalty provision was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. The amendment does not alter the elements of the offence in any way but simply re-inserts the penalty which was previously in the provision before being inadvertently repealed.

The penalty for the offence is being inserted retrospective to when the penalty was repealed. This is important as the prohibition for the secrecy offence continued to be in force even though there was no penalty for it. It should not be the case that individuals can escape punishment simply because of the inadvertent repeal of the penalty.

The second measure is an amendment to Part ID of the Crimes Act 1914. Part ID of the Crimes Act deals with the collection and use of DNA material by Commonwealth law enforcement agencies. Part ID also set up the National Criminal Investigation DNA Database as a platform to facilitate the matching of DNA profiles across Australian jurisdictions. The bill will amend section 23YV of the Crimes Act so that the second review of Part ID must commence no later than 1 November 2009 instead of March 2005.

As Part ID deals with the National DNA Database, it is important that any review is able to properly analyse the Database’s operation. In early 2005, the Database was still only partially operational. If the review was conducted at that time, it would not have been better placed than the first review to analyse the operation of the Database. Commencing the review by November 2009 will allow time for the Database to be fully operational when the review takes place. If the Database is not operating effectively at that point, the second review will be able to analyse why the Database was not being used effectively nine years after its establishment.

As a result, the review will be able to assess trials which have involved DNA matching. The review will also be able to assess the adequacy of safeguards and any issues that have arisen in court proceedings. The review will also analyse the implementation of the recommendations from the first review in 2003.

The final amendment is to the Crimes (Aviation) Act 1991 which governs crimes and other acts committed on aircrafts, or, in airports or related facilities. Section 15 of the Crimes (Aviation) Act is intended to ensure that standard ACT criminal laws apply on Australian flights. However, the current reference to ACT laws in the Crimes (Aviation) Act is out of date. Currently, only offences contained in the ACT Crimes Act 1900 apply on flights, while those in the ACT Criminal Code 2002 do not.

The amendment will ensure that both the ACT Criminal Code and the ACT Crimes Act apply to conduct on relevant flights. The amendment will also introduce a regulation making power into section 15 of the Crimes (Aviation) Act. This will provide flexibility in the event of future changes to ACT criminal law.

In summary this bill contains three minor but necessary measures to ensure Commonwealth criminal law legislation is kept up to date.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008, which has the support of the opposition, proposes to make three minor amendments in the Australian Federal Police Act 1979, the Crimes Act 1914 and the Crimes (Aviation) Act 1991. None of the amendments are controversial; rather, they update outdated legislation or fix minor administrative oversights in the acts as they stand.

By the first of the amendments, the bill seeks to reinsert the maximum penalty of two years imprisonment for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1970. The penalty was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. The re-enactment of the penalty is retrospective to when it was repealed so as to ensure that any convictions related to offences of this nature in the past two years do not escape punishment.

By the second of the amendments, the bill seeks to alter the timing of the second review into part ID of the Crimes Act 1914—that is, the collection and use of DNA material by Commonwealth law enforcement agencies. There was a review into this matter in March 2003, and the legislation required that a second review take place two years later, in March 2005. This did not take place, as interjurisdictional DNA matching between most states and territories, as well as the Commonwealth, has only been in place since mid-2007. It is argued that, for a review to be fully effective, it is desirable for a body of cases to have progressed from matching to investigation to trial so that there has been a meaningful test of the powers and safeguards in the legislation. The bill therefore requires that the second review commence no later than 1 November 2009.

By the third of the amendments, the bill seeks to ensure that the ACT Criminal Code is applied to flights originating or terminating in Australia or flights on Australian aircraft. Currently, the ACT Crimes Act 1900 and the ACT Prostitution Act 1992 apply to criminal behaviour on board flights. However, many offences which were formally in the ACT Crimes Act now appear in the ACT Criminal Code. This amendment will also allow regulations to be made to specify particular ACT laws that apply on relevant flights. This will provide flexibility in the event of future changes to ACT criminal law.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

This is my last go as the Attorney-General spokesperson for our party. I notice it is pretty much the same speakers—we should take this show on the road, Senator Brandis, and try and make the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008 sound even more exciting! Here we go. The bill, as has been pointed out, makes fairly minor amendments to the Australian Federal Police Act 1979, the Crimes Act 1914 and the Crimes (Aviation) Act 1991.

As you have heard, the first amendment reinstates the maximum penalty of two years imprisonment for the secrecy offence in subsection 60A(2) of the Australian Federal Police Act 1979—the penalty provision having been inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006. No substantive change is made to the nature of the offence; however, the penalty provision will apply—and I say this in caps and bold—retrospectively to the date when the penalty was repealed, so that individuals convicted of the offence since 2006 are not able to escape punishment.

Of course, this rationale is entirely understandable. But—as you would know, Mr Acting Deputy President Murray—Democrats as a rule get a little suspicious of retrospectivity in law, particularly in relation to criminal law, and we always advise that it should be approached with extreme caution, especially in relation to offence provisions. However, I have been advised by the office of the Minister for Home Affairs that no criminal prosecutions have previously failed as a result of this anomaly and no prosecutions are afoot or contemplated at the present time. In these circumstances, therefore, the Democrats will not oppose the amendment, which has arisen as a result of a legislative error made by the previous government. It is important that criminal acts do not go unpunished as a result of poor legislative practice, particularly where the elements of the relevant offence have remained clearly set out, and the amendment merely corrects the omission of a note detailing the penalty for that offence.

The second measure in the bill amends part ID of the Crimes Act 1914, which provides a review mechanism for the National Criminal Investigation DNA Database. Again, you have heard Senator Brandis outline the rationale in relation to this. As the legislation stands, a follow-up review should have occurred in 2005, based on a requirement that a subsequent review be held within two years of the completion of the first review. However, in 2005 the database was only partially operational; therefore, there was little point in conducting a review at that stage. Senator Brandis referred to the idea of it being optimum that there is a body of cases et cetera. We accept and agree with that rationale. However, the amendment provides that the review should now commence no later than 1 November next year to allow time for the database to be fully operational when the review occurs. The Democrats do support this commonsense amendment and we do also hope that when the review occurs it reveals a functional and useful DNA database.

The third and final measure of the bill amends the Crimes (Aviation) Act 1991 to make reference to the Criminal Code 2002 (ACT) in its application to the Jervis Bay Territory. Under the Jervis Bay Territory Acceptance Act 1915, the laws of the ACT, including common law offences, apply in the Jervis Bay Territory, provided they are not inconsistent with Jervis Bay ordinances in force at the time. I told you there had to be a way to make this sound more exciting. Once the ACT Criminal Code came into force in 2003—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

This is a much more riveting speech than mine was, Senator Stott Despoja.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Through you, Mr Acting Deputy President Murray, to Senator Brandis: thank you. I know you are just being nice because I have three days left, but I appreciate it. Now I just feel a lot of pressure to make this final paragraph really burst with feeling.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

A great rhetorical flourish.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Just wait. Once the ACT Criminal Code came into force in 2003, it abolished common law offences in the ACT and replaced them with the offences in the code. This bill ensures that the offences contained within the code will apply to criminal conduct on board aircraft relating to the Jervis Bay Territory—that includes aircraft engaged in a commercial flight with other countries or among the states and territories, an Australian aircraft engaged in a flight wholly outside Australia and a Commonwealth aircraft or defence aircraft. This amendment and this bill have the support of the Australian Democrats.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Bravo!

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Thank you, Senator Stott Despoja. I think the interjections of approval were shared around the chamber.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

Can I too thank Senator Brandis and Senator Stott Despoja for their contributions to the debate on the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008. Their contributions show that even miscellaneous matters can be interesting. First of all, I will just take a few moments to address the points that have been raised. This bill contains three minor but very necessary amendments to Commonwealth criminal law. The first amendment, as Senator Stott Despoja so rightly said, is a correction of a legislative error on the part of the previous government and re-inserts the maximum penalty of two years imprisonment for the secrecy offences in subsection 60A(2) of the Australian Federal Police Act 1979. I note the Democrats ongoing concern about retrospective measures, but I am pleased that the Attorney-General and the Minister for Home Affairs have been able to reassure Senator Stott Despoja that there are no matters outstanding that would be affected by this retrospectivity.

The second measure relates to part ID of the Crimes Act 1914. We know of course that the follow-up should have occurred and will now occur with a more assessable DNA database, and that seems to be a very sensible provision in this amendment. The final amendment to the Crimes (Aviation) Act 1991, which was the subject of Senator Stott Despoja’s riveting conclusion, relates to the issue of Jervis Bay and the current reference to ACT criminal laws in section 15. Those of us who are from New South Wales understand the peculiar relationship that New South Wales government legislation has with the area around Jervis Bay, which is covered by the ACT Criminal Code under the Jervis Bay act. This amendment will introduce a regulation making power into section 15 of the Crimes (Aviation) Act 1991. It is an important and not so minor amendment to this legislation. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.