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

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 makes a number of technical and enabling amendments to streamline investigations and prosecutions of people-smuggling crew which appear to the coalition to be quite sensible changes. This bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs, which reported just yesterday and recommended that the bill be passed—a recommendation in which coalition members joined. It is worth quoting from the additional comments of the Liberal senators. They said:

Coalition senators consider that the terms of the … Bill 2013 are directed at a number of apparently useful changes to existing legislation. Some of those changes have been expressly welcomed by submitters to the inquiry.

However, Coalition senators take this opportunity to outline their concerns with the lack of proper scrutiny which this bill has been afforded under this rushed reference to the committee.

Input to this inquiry has been seriously hampered by the restrictive timeframe, putting at risk the strong reputation of this committee for conducting careful and comprehensive scrutiny of every bill referred to it.

It is this fact that Australian Lawyers for Human Rights … raise in their submission where they state:

The fact that submissions are required in less than 40 hours destroys any notion of accountability and public scrutiny which is sought to be provided by public involvement in the committee process.

They go on to say:

However because of the time period the Parliament has chosen to allocate for submissions, ALHR—

that is, Australian Lawyers for Human Rights—

are unable to assess and respond on these matters. We would like the Committee to note our concern and opposition to such a short time being made for submissions.

So, even though this week the government has made a farce of the role of the Senate as a house of review by guillotining through 55 bills in a week—an absolute farce—and although their complicity in that legislative manoeuvre has exposed the Greens to be the rank hypocrites that they are, never will one of them be able to say, without knowing themselves to be uttering wilfully dishonest statements, that they care about the role of the Senate as a house of review.

Notwithstanding that, it is worth remembering that it is not merely in the Senate chamber that this government's abridgement of democratic processes is seen. It is also seen in the abuse by the government of the committee system. How extraordinary that a bill of this kind should require public submissions from the time of advertisement to the time of closure to be provided in 40 hours—less than two business days?

It is bad enough to guillotine legislation through the chamber; it is even worse to effectively guillotine the committee system, because the committee system is the point of direct intersection between the parliament and the public. It is the point of direct intersection between the parliament and, in particular, the specialist public—like, for example, on a bill relating to the criminal justice system, the legal profession and criminal law practitioners and people who work with victims and work with offenders—to solicit their expert input so that the Senate's deliberations can be informed by the people on the ground, as it were, who are in the best position to advise the parliament as to the effectiveness or appropriateness of bills and opportunities to reform those bills.

I think this bill, which the opposition, as I said, does support, provides a shocking example of the way in which the guillotining of legislation not merely interferes with the parliament's capacity to deliberate but it also foreshortens to the point of effective irrelevance the public's capacity to contribute to the Senate committee system. The gibbering fools who comprise the Greens party and who speak so loudly and eloquently about democracy and the role of the Senate as a house of review are complicit in that. So let us not take any protestations from you, Senator Rhiannon, or you Senator Penny Wright, or you Senator Di Natale, or you Senator—whoever you are—Siewert seriously. In any event, having made the point about the disgraceful process which has attended this bill—

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise on a point of order. Senator Brandis can at least use our proper names when he is taking up the valuable time of the Senate hurling abuse. He could at least use our proper names.

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

Through you, Mr Acting Deputy President: I am sorry, Senator Siewert. I thought your name was Senator Siewert, but I momentarily forgot it.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, he also forgot Senator Di Natale's name.

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

Mr Acting Deputy President, is there a point of order?

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

No, it has not risen to one.

A government senator interjecting—

Order! I just remind the chamber that every senator has an obligation to address each of the other senators by their correct name. Thank you very much.

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

Certainly, Mr Acting Deputy President. I simply forgot Senator Siewert's name momentarily. I was reflecting on the grossness of the hypocrisy of the Greens party in allowing the process of deliberation, not just in the chamber but through the Senate committee process, to be so truncated as to be virtually non-existent. But, nevertheless, the opposition have scrutinised the terms of the bill and we are satisfied with it and find ourselves able to support it.

The Liberal senators devoted most of their report to a critique of the inadequacy of the committee process. I have made the observations that I wanted to make about that. As to the substance of the bill, the provisions seem to us to be sensible and, therefore, as indicated at the start, the bill has the coalition's support.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I was unfortunately unable to participate in this inquiry which was conducted by the committee that you, Madam Acting Deputy President Crossin, chaired. But, as you would be aware, our references committee had already looked in some depth at some of the issues involved in this bill—for example, the question of wrist X-rays as a way of indicating the age of an individual. I do not think anyone at all in Australia would like the prospect of us imprisoning children with adults, so ascertaining if someone is a minor or not is something that we certainly need to be able to do.

It will be interesting to see how in practice this bill pans out. We know now that we will not use wrist X-rays as a way of determining the age of the person who is involved in perhaps people smuggling or illegal fishing in Australia. What we will do instead is use an evidentiary certificate which will contain factual matters, including the number of passengers on a vessel, the number of persons who crewed the vessel, the location of the vessel, when the vessel was intercepted and a description of items secured or seized. I am not entirely sure how this is going to help us to assess the true age of someone who is intercepted on a boat, either a people-smuggling vessel or an illegal fishing vessel, but we shall see how this comes about in the long term.

There is the serious problem that this may in fact encourage adults to claim to be children. Whilst it would seem a fairly simple matter to solve for Australians, thinking, 'For heaven's sake; can't we just get their birth certificate?', we have had a lot of evidence from the Australian Federal Police and others pointing out that in fact we cannot just send someone over to a fishing village in Indonesia to go through the church records or police records there. In some cases there may be fairly rudimentary records kept. In other cases it may take months and months to receive any sort of evidence back from authorities in the relevant jurisdiction, be it a village or a province.

But there was also evidence given in the earlier inquiry—which I think you will acknowledge, Madam Acting Deputy President, was a far more in-depth inquiry than the very rushed effort that was put together for this bill—that in fact there were opportunities presented to the jailers of minors who were in adult detention to find out about their age. There were people who, through interpreters and others, suggested that adults and others could be rung in their home states or villages to try to give some sort of evidence about their age—yet much of this was ignored. It is a very fraught area, and I will be interested to see how this works out in practice. But certainly there would be no group that would want children to be held in detention as adults.

But we do have to keep in mind that there is the possibility of adults pretending to be children so that they can avoid the sort of detention that is being talked about because, as this bill points out, the idea with children would be to send them home as quickly as possible. In fact, the then Minister for Home Affairs, Brendan O'Connor—that is about six ministers ago now, I think!—talked with Indonesian ministers and officials, as part of a visit to Jakarta, about the age determination process for people involved in people smuggling. After his discussions with the Indonesians in 2011, he said:

What we've made very clear to the Indonesian government is that we will set in place an administrative arrangement where the matter is not referred to the AFP but there will be a determination by the Department of Immigration and Citizenship, and then the International Office of Migration will accompany those minors home as quickly as possible.

Those procedural changes have occurred, but we now have this difficulty of the AFP dealing with adults and not with children. I really cannot see quite how that will transpire long term. We will be interested to follow this. Hopefully, it will not lead to a great change in the numbers that are presented.

What we will end up with here is no prescribed procedure for determining age under the Crimes Regulations. As I have said, this amendment implements a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee and responds to concerns of the Australian Human Rights Commission and, indeed, advice from the Office of the Chief Scientist, who was unable to be very specific about whether he thought that wrist x-rays worked or not.

But there really is not sufficient scientific data to support use of wrist x-rays to determine whether a person is a minor. Regulation 6C of the Crimes Regulations prescribes wrist x-rays as a procedure for determining age and so forth. In the past the AFP have arranged for wrist x-rays to happen and have put expert analysis of those x-rays before the court as evidence of an age-determination hearing. This will no longer happen. Certainly wrist x-rays have been sufficiently devalued as a way of ascertaining age for us not to use them, but we do not have any regulations at all for that other than what appear to be very, very lengthy procedural inquiries that need to be made. I think we need to proceed with caution in this area, particularly if we suddenly find that we have an epidemic of under-16-year-olds coming to Australia.

Because we have a time limit on the debate for this bill—we have the gag yet again; we had a gagged inquiry and now we have a gagged debate—I will stop my comments now and give others an opportunity to speak on this legislation.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I can only pick up on the comments made just a moment ago by Senator Boyce about the unsatisfactory nature of this process. Once again we have had significant legislation presented to the Senate with an extraordinary degree of haste and a level of abuse of due process such that one has to wonder whether, at the end of the day, we as a parliament and, in particular, the Senate as a house of review, are doing our job properly in examining the implications of legislation of this kind.

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 was presented to the House of Representatives by the Attorney-General on 29 May. On 18 June, three weeks or so later, it was referred by the Senate to the Senate Legal and Constitutional Affairs Legislation Committee. The committee was initially meant to report on 20 August, which would have been a respectable kind of reporting interval, but it was then of course indicated to the committee that the bill was to be considered in the Senate this week. As a result, it was necessary to bring the reporting date forward to 25 June. So on 18 June the bill was sent to the committee and on 25 June the committee was meant to report. Needless to say, what transpired in terms of the work of the Senate Legal and Constitutional Affairs Legislation Committee was something which could best be described as a travesty of its normal rigorous process of examination of legislation.

The committee contacted the sorts of organisations that it thought might be interested in providing evidence. Advertising in the usual fashion was not possible. The committee contacted a number of organisations, but of course the general public in that situation has almost no chance of contributing to the debate and to the consideration of such issues. As we know from previous inquiries—of course, Madam Acting Deputy President Crossin, I am preaching to the converted in your case as the chair of that committee—there are often large numbers of individuals in the community with a variety of backgrounds who can make very useful comments to Senate inquiries about what is going on with these matters. They could easily have added to the wealth of knowledge about this issue, but the opportunity was not provided to them.

Not surprisingly, having written to over 90 organisations and individuals and inviting submissions to be made within a ridiculously short period of time—48 hours at most—we received just six submissions. Those six submissions pretty well all made reference to the inability of organisations like them to be able to deal properly with the issues in this bill. I will quote from only one, that of the Australian Lawyers for Human Rights, who in their submission said:

The fact that submissions are required in less than 40 hours destroys any notion of accountability and public scrutiny which is sought to be provided by public involvement in the committee process.

They went on to say:

However because of the time period the Parliament has chosen to allocate for submissions, ALHR are unable to assess and respond on these matters. We would like the Committee to note our concern and opposition to such a short time being made for submissions.

This is an organisation with a background in this area. It would have been useful for the committee and in turn the Senate to be able to receive evidence from it in the course of the inquiry, considering the raft of issues contained in this legislation. Here we have a key group saying to the Senate:

The fact that submissions are required in less than 40 hours destroys any notion of accountability and public scrutiny …

Destroys any notion of accountability and public scrutiny!

Yet this is not the only example that the Senate has had to deal with, in the space of this week, of the proper processes of the Senate being trampled underfoot in the undue haste to rush through, in the dying days of the parliament, a whole raft of legislation which this chaotic and dysfunctional government happens to think should be pushed through while it still has the numbers. I particularly single out for that criticism the Australian Greens, who made such a song and dance of the issues of use of the guillotine and rushing legislation when they were on this side of the chamber facing the Howard government, and now have not only accepted these premises as the basis on which to pass legislation through this place but have also actually accelerated the rate at which these sorts of abuses of process are occurring. We are now passing legislation through the parliament with the use of guillotines at a rate three to four times the rate that was happening under the Howard government. That is absolutely disgraceful, and the Greens should be asking themselves what kind of accountability they are engineering in this parliament when they are prepared to cooperate with these sorts of travesties of due process.

Turning to the provisions of the legislation itself: again, in the extremely short period of time that the committee have had to examine these matters, it is difficult to identify whether these measures are, in their totality, appropriate or not. It appears, on the face of it, as if there is some basis for the myriad of provisions which the legislation contains. But, again, I certainly do not provide any warranty that the legislation will meet the requirements that have been set for it. Indeed, I have to say that I am concerned that some of these things have been given far too little weight for the gravity of what is required.

Senator Boyce mentioned the provision to exclude the use of wrist X-rays as an age assessment tool, and it was pointed out to the inquiry that the accuracy of wrist X-rays as an assessment tool with respect to age has been largely discredited, that variations in skeletal maturity based on environmental and ethnic factors led to wide variations in what a wrist X-ray would actually tell somebody about the age of a person, and that there were ethical concerns about non-medical uses of such a technology. For a variety of reasons, the suggestion was I think taken seriously that wrist X-rays could not be properly employed.

Similarly, the legislation picked up, in this case, on a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee, when it examined an earlier bill, that there should be an express placing of the onus of proof on the prosecution for the proof of age of a person subject to criminal proceedings in relation to immigration matters in particular, and that the prosecution, therefore, bears the burden of establishing that a person was an adult at the time of a relevant offence. That, in fact, was the references committee's recommendation arising out of its inquiry into the detention of Indonesian minors in Australia.

However, the point remains that the reason for these provisions being considered at all is that the government is facing a veritable flood of people arriving in this country on boats who are overwhelming Australia's immigration system's ability to properly process them, and of course the more this is happening the more experience people smugglers are getting of what they are encountering with the process, and the more sophisticated their operations are becoming. They have discovered that if people declare that they are children when in fact they are not then their chances of escaping the consequences of the law are somewhat greater. So we are finding remarkably large numbers of people fronting our immigration system who are making that declaration when, on most assessments, one would to have to be seriously in doubt that these people are actually children—and in fact many of these people are declaring, after being acquitted of offences, or I understand that they are saying, that they are in fact not children at all.

Again, that is a consequence of a government in free fall—a consequence of a government not able to manage its business in an appropriate way—having to rush legislation through here to deal with a crisis which is very much of its own making. We have here a government quite unable to deal with these issues appropriately, and the proper processes of the Senate bear the brunt of that mismanagement. It is a sad day when we have to go through this kind of process. But, once again, we have no choice in this matter because of the conspiracy of the Greens in this exercise.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Order! The time allotted for the remaining stages of the bill has expired. The question is that the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 be now read a second time.

Question agreed to.

Bill read a second time.