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

I move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—

DEFENCE LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 2008

The purpose of the Defence Legislation (Miscellaneous Amendments) Bill 2008 (the bill) is to make amendments for three separate measures.

The first of the three measures will amend the Geneva Conventions Act 1957 and the Criminal Code Act 1995 to implement the third protocol to the Geneva Conventions in Australian legislation.

Despite the Red Cross and Red Crescent emblems being exclusively used as universal humanitarian symbols, they have at times been wrongly perceived as having religious, cultural and political connotations. This has affected the respect for the emblems and has diminished the protection they offer to persons requiring and to the humanitarian aid providers operating in areas of conflict.

On 8 March 2006 Australia signed the Protocol Additional to the Geneva Convention of 12 August 1949 which established a third universal and distinctive emblem called a “Red Crystal,” for the Red Cross/Red Crescent Movement, which has no religious, ethnic, racial, regional, or political connotations.

This Protocol entered into force generally on 14 January 2007 and as at February 2008, 86 states have signed or ratified the Protocol.

The amendments to the Geneva Conventions Act 1957 will specifically incorporate a reference to, and description of, the Red Crystal emblem and reference the Protocol in Part IV of that Act, and the Protocol will be set out as a schedule in the Act.

This measure also amends the Criminal Code Act 1995 to specifically incorporate the Protocol III and the Red Crystal in the Dictionary to the Criminal Code; and ensure that the improper use of the Red Crystal is caught by the offences of “improper use of the emblems of the Geneva Conventions.”

As with the other emblems, the new emblem will be used only with the consent of the Minister for Defence. The new emblem is unlikely to be used in Australia for either indicative or protective purposes given the long standing recognition accorded to the Red Cross emblem. The new emblem may, however, be used by the ADF in certain regions overseas.

Incorporation would further demonstrate and enhance Australia’s credentials in international humanitarian law. It would also enable Australia to encourage states not yet a party to the Protocol to ratify it, both within our region and beyond.

The second measure will amend section 124 of the Defence Act 1903 to explicitly enable the making of regulations to cover the provision of medical and dental treatment including pharmaceuticals to an ADF member or cadet, or a member of the family of an ADF member.

At present, the Defence Force Regulations contain a limited provision that merely recognizes the provision of medical and dental treatment to members of the ADF so that they are healthy for the purpose of discharging their duties as well as cost recovery in specified circumstances.

The amendments to section 124 enable a more comprehensive regime in the Defence Force Regulations. The amendments will broaden the regulation making power to enable the making of regulations to cover the provision of medical and dental treatment (including pharmaceuticals) to an ADF member or cadet or a member of the family of an ADF member.

In relation to pharmaceuticals, it is intended that the Regulations will cover the possession, storage, supply, dispensing and administration of scheduled pharmaceuticals by ADF pharmacists, ADF medics, ADF Nurses, and civilian health professionals engaged by the ADF. The effect of the amendments would be to create a regime that would ensure that the ADF and its members are not hindered in the uniform application of their duties, here and overseas by competing State and Territory laws.

The third measure amends the Defence (Special Undertakings) Act 1952 to insert a new part to provide specific arrangements for the Joint Defence Facility Pine Gap.

The Joint Defence Facility at Pine Gap makes an important contribution to the security interests of both Australia and the United States of America, through the collection of intelligence by technical means and the provision of ballistic missile early warning information.

The methods used for collecting intelligence at the facility are sensitive and their public exposure could threaten their effectiveness and thereby diminish their contribution to national security. It is therefore important that the Joint Defence Facility Pine Gap is protected with effective legislation to deter unauthorized access to the facility.

This measure will strengthen the Commonwealth’s ability to successfully prosecute the existing offences under the Defence (Special Undertakings) Act 1952 in relation to the Joint Defence Facility Pine Gap, by:

(a)

specifically declaring in the Act that the Joint Defence Facility Pine Gap is a special defence undertaking and prohibited area for the purpose of the Act; and

(b)

inserting a purposive clause to make it clear that the Parliament’s power to legislate with respect to the defence of the Commonwealth is not the only constitutional basis relied upon for the Act.

By specifically declaring the facility a special defence undertaking and prohibited area directly under the Act rather than by the existing process that requires a Ministerial declaration will provide a firmer basis for any future prosecutions by removing the opportunity for argument about the validity of a declaration. These protections are essential to a facility of such sensitivity and importance to Australia’s Defence and External Relations to deter mischief makers and those with more sinister intent.

FEDERAL COURT OF AUSTRALIA AMENDMENT (CRIMINAL JURISDICTION) BILL 2008

Introduction

The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 is introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

That other Bill will amend the Trade Practices Act 1974 to introduce new offences for serious cartel conduct. The amendments will also give the Federal Court jurisdiction to deal with the new offences.

The current Bill sets up a procedural framework to allow the Federal Court to exercise this new jurisdiction.

The bill has been the subject of extensive consultation with the Law Council of Australia, the Federal Court, the Australian Competition and Consumer Commission, the Commonwealth Director of Public Prosecution, the Australian Federal Police and the Office of the Privacy Commissioner.

Cartel conduct

Cartels undermine the operation of the market economy and that is why the Rudd Labor Government is committed to criminalising such behaviour. The amendments to the Trade Practices Act will introduce new indictable offences with penalties of 10 years imprisonment for serious cartel conduct.

The Federal Court will be given jurisdiction to deal with the new offences because that Court has extensive experience in dealing with cartel conduct as a result of hearing civil cases under the existing provisions of the Trade Practices Act.

The Federal Court is familiar with the concepts of cartel conduct and the impact it can have on the Australian community. The Court is well placed to deal with the new offences, and to deal with cartel conduct in both the civil and the criminal contexts.

Federal Court

This will be the first time the Federal Court has been given indictable criminal jurisdiction, and the first time the Court will need to run jury trials.

It requires extensive amendments to the Federal Court Act and other legislation to allow the Federal Court to hear jury trials.

The bill includes provisions dealing with the form of indictments, entering pleas, pre-trial proceedings, bail, the empanelling and management of juries, the conduct of trials, sentencing and appeals.

The Federal Court will not be given exclusive jurisdiction for the new cartel offences. The State and Territory Supreme Courts will also have jurisdiction to deal with them. That has been done to ensure there is flexibility if, for some reason, it is not possible for a trial to be run in the Federal Court.

The government has no plans to give the Federal Court indictable criminal jurisdiction in other areas.

The procedures

The bill will give the Federal Court the full range of powers it will need to exercise this new and important jurisdiction.

The provisions have been modelled on existing provisions in State and Territory law, but are not a direct copy of any single set of provisions.

The bill sets a single set of procedures that will apply in all trials before the Federal Court irrespective of where the trial is held. The Federal Court will apply the rules of evidence set out in the Commonwealth Evidence Act 1995.

The alternative of picking up State procedures and rules of evidence is not workable. It would mean that the Federal Court could be required to apply different procedures for the same conduct depending on where the trial was being held. As a result, it would require the Federal Court and its judges to become familiar with the procedures and rules of evidence of 8 State and Territory jurisdictions.

Section 80 of the Constitution will require that any trial held before the Federal Court for a Commonwealth offence committed in a State must be held in the State where the offence was committed.

Pre-trial hearings

The pre-trial provisions are particularly important to the effective working of the bill. Trials for the serious cartel offences are likely to be long and hard fought. It is important that as much as possible is done at the pre-trial stage to determine what matters are in issue and narrow down the issues which need to be considered by the jury.

There are extensive provisions dealing with pre-trial hearings and pre-trial disclosure. The provisions will impose pre-trial obligations on both the prosecutor and the accused person.

The Court will be able to take control of the proceedings at an early stage and will have power to ensure that the accused knows the case against them and has access to any unused material which is potentially relevant to responding to that case.

An accused person will not be required to disclose their proposed defence, unless they intend to raise an alibi or rely on mental impairment. However, the accused must provide a statement setting out, for each fact, matter and circumstance outlined in the notice of the prosecution case, whether the accused agrees or takes issue with it.

The Court will also have power to require an accused person to disclose copies of any expert report they intend to rely on at trial so that, as far as possible, any dispute between experts can be resolved at the pre-trial stage.

These provisions are modelled on section 6 of the Crimes (Criminal Trials) Act 1999 in Victoria and section 137 of the Criminal Procedure Act 1986 in NSW.

Commonwealth Director of Public Prosecutions

Trials for the serious cartel offences will be run by the DPP in accordance with the normal procedure in Commonwealth cases.

Committal proceedings for the new offences will be run in the State and Territory committal courts in the same way as for other Commonwealth offences. The practical effect of the bill is that, if an accused is committed for trial, the choice of venue will rest with the DPP.

The prosecutor has traditionally made the decision on venue where more than one court has jurisdiction to deal with a matter. It has not been suggested that the Commonwealth DPP has misused this power in the past.

This bill will ensure that the Federal Court is properly equipped to deal with the important new jurisdiction that it will be given under Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

I commend the bill.

Debate (on motion by Senator Ludwig) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.