Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I mentioned in my second reading contribution that the Australian Greens have significant concerns about the proposed new section 319. I want to going to a bit more detail about those concerns now. The government is effectively proposing to trade away people's rights to a fair trial in order to expedite proceeds of crime proceedings. This concern is held not just by the Australian Greens but by many organisations, including, as I said in my speech on the second reading, the Victorian Bar and Criminal Bar Association, the Law Council of Australia and the Australian Human Rights Commission.

I would like to place a few detailed matters on the record from some of those organisations. The Australian Human Rights Commission, in its submission to the Senate Legal and Constitutional Affairs Legislation Committee on 6 January this year, said:

The second issue of concern for the Commission is that some of the grounds which the proposed new s 319 would require a court to ignore are highly likely to result in prejudice to an accused person and increase the risk that their trial would not be fair.

The Law Council of Australia's submission makes their view very clear, stating:

A relevant question that may be required to be answered is whether limiting the discretion of a court as to when it may order a stay of proceedings in the manner proposed by the Bill is accompanied by adequate safeguards to ensure the:

• Constitutionally protected fair trial of an accused will not be prejudiced; and

• The court retains power over its processes thereby preserving the separation of powers as required by the Constitution.

The Victorian Bar and Criminal Bar Association submission is critical of the explanatory memorandum circulated by the government in support of this legislation. Paragraph 34 of their submission states:

Paragraph 49 of the Explanatory Memorandum states:

"The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (i.e. the prejudice that may result to a concurrent or subsequent criminal trial)."

Paragraph 35 states:

It is submitted the proposed amendments do not achieve that purpose. To the contrary, the proposed amendments proscribe the Court's inherent power to order a stay where there is a risk the concurrent POC proceedings would prejudice a pending criminal trial.

Paragraph 36 then states:

It is submitted the proposed amendments amount to a grave infringement of the rights of an accused to a fair criminal trial. The proposed amendments will compel a person charged with a criminal office, who wishes to defend POC proceedings, to give evidence in the POC proceedings in advance of his or her criminal trial about matters to which the criminal trial relates.

When you have a good look at proposed new section 319, you see that it does give rise to significant questions for the government. During the committee stage of this bill, I would appreciate a response to these questions from the minister if possible.

We need to place on record that we understand that the first part of proposed new section 319 provides that a court may stay proceedings under the Proceeds of Crime Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so. However, proposed new section 319 then goes on to provide a list of grounds on which a court must not stay Proceeds of Crime Act proceedings. This is the first question I have for the minister: is it the government's intent that, even though a court may decide that it has grounds to stay proceedings because it is, in the court's view, in the interests of justice to do so, it is prevented from staying proceedings on the grounds listed in subsections (2), (3) and (4) of proposed new section 319?

If it is the case that the court cannot stay proceedings on grounds that are listed in (2)(a), (2)(b), (2)(c)(i) and (2)(d), even if the court believes that it is in the interests of justice that the proceedings be stayed, I think the government has a constitutional issue on its hands, and that is the constitutional protections around the right to a fair trial in this country. That is the first question: is it the government's intent that the grounds laid out in section 319(2) would prevent a court from staying proceedings, even if the court formed a view that those grounds constituted reasons to stay the proceedings in the interests of justice?

The other question I would like to ask while I am on my feet is: can the minister provide any advice to the Senate on the grounds it might be open to the court to stay proceedings in the interests of justice? To describe the provisions of the proposed new section 319(2) as broad does them a disservice. They are massively wide grounds that the government is seeking courts from using to stay proceeds of crime proceedings. In the new section 319(2) (c)(ii), it becomes clear from reading that subsection that the court must not stay proceeds of crime proceedings on the ground that 'evidence is, or may be, relevant to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced'. Basically, the court is going to have to form a view of the likelihood of criminal proceedings which may or may not be commenced at some time in the future before it can to decide whether that subsection becomes a trigger for the substantive provision in subsection (2), which is that the court must not stay Proceeds of Crime Act proceedings on those grounds.

To describe them as broad, as I have said, is doing them a disservice; they are incredibly broad provisions. They are so broad that I am forced to ask the minister: can he possibly come up with a reason that a court may reasonably consider it in the interests of justice to stay proceedings that is not covered by the proposed new section 319(2)? Can we collectively in this place conceive of a reason that proceedings can be stayed by a court because the court considers that it is in the interests of justice to stay proceedings that are not caught by subsection (2)? I am personally struggling to come up with a reason that a court might reasonably use that it is in the interests of justice that proceeds of crime proceedings be stayed that has not been ruled out by the proposed section 319(2). That is how broad that subsection is.

I would also like an answer, Minister, if possible—I am not asking for the Solicitor-General's advice to be tabled—to the question: was the constitutionality or otherwise tested through the Solicitor-General prior to this legislation being introduced? If so, what matters were raised? It was the view of some submitters to the committee process that this legislation could lead to circumstances where a right to a fair trial, which is a fundamental right in this country, would be prejudiced. That is something we ought to avoid at all costs in this place. I heard earlier today from the minister who has carriage of this bill reference to the fact that stays of Proceeds of Crime Act proceedings can frustrate the intent of the Proceeds of Crime Act legislation, but, surely, it is more important that someone get a fair trial in this country than that those proceedings be handled expeditiously so that the Commonwealth can get its hands on any assets which may be delivered to the Commonwealth off the back of proceeds of crime act proceedings.

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

I thank the senator for the questions—they were comprehensive—but in my answer, being a bloke, I might not have picked up on all of them. So if you can ask the question again for anything I have not covered, I would appreciate that. You start of making the assertion that we seek to remove the rights to a fair trial. I hope that was just a glib throw-in there, because that is not what we are motivated by. We are actually motivated to ensure that if there is a particular mischief where someone can continually delay proceedings and, whilst those proceedings are being delayed, they are separated by some sort of lean being placed over disposal of assets or spending of assets and that has seen to be done, then we need to ensure that the court has some guidelines around the nature of the circumstances where a stay in proceedings may take place.

I note that Senator McKim has quoted from the Victorian Bar Association, and I note, without giving him too hard a time on it, he is in fact a member of the committee. I looked carefully at the committee report and I note there is no dissenting report from the Greens. That is okay, we are all busy in this place, so I am not giving you too tough a time. I understand this amendment arrived just before question time, and sometimes it is difficult to deal with these things. This is quite a simple amendment to speak to, but given the amount that the committee put into this, it has not been done in a way that has been glib or flippant. A lot of people have put a lot of time into this. Two committees, both the Legal and Constitutional Affairs Committee and the Senate Selection of Bills Committee, reported on the bills. The Senate Scrutiny of Bills Committee provided further information that has now been included as an addendum to an explanatory memorandum to explain those matters. We have comprehensively looked into this.

The challenge is, fundamentally, that if we accepted the amendments the Greens are putting forward it would protect the mischief that this legislation seeks to remove, which is why we would not support them. But we should look to the answers to Senator McKim's specific questions so that we can make that case. He asks if the court could use its discretion on all matters not described. The most important point is that the proposed subsections 319 (2), (3), (4) and (5), which are all the matters he was talking about, are in fact matters that would limit but not remove the overarching discretion of the court under proposed subsection 319(1) to stay proceedings. So it only limits it. The proposed changes would not remove the discretion to grant a stay, but they have the effect of ensuring that a person who is seeking a stay of proceedings has to explain to the court the risk of prejudice in the circumstances, rather than simply stating that they or another person may face charges or may have to give evidence in relation to a criminal matter at a future date. So they cannot just assert that—they have to require a person seeking that to explain it to the court. It is quite clear that it does not remove the overarching discretion of a court under proposed subsection 319(1).

Senator McKim also mentioned that the court may reasonably have a view not to stay proceedings and what were the circumstances under which that would happen. As I have said, they are not prescribed. Outside of the matters in section 319, which describes what a person is required to provide, the legislation is silent on the remainder. The court would have complete purview over the remainder to make a decision on those matters. Constitutionality has been tested, and I am advised it has been tested with the Solicitor-General. The government takes comfort from that advice.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister sincerely for his responses, particularly his willingness to make it clear to the Senate that there was advice sought from the Solicitor-General and that the government has taken comfort from the advice. I will place a couple of matters on the record in response to the minister and then perhaps ask a couple of follow-up questions. Firstly, I make it very clear that I may be a relatively new member of this place but I am well aware that there is nothing that would prevent me from moving amendments to a piece of legislation even if, as is the case in this circumstance, I was the member of a committee that had reported on a piece of legislation without a dissenting report. Parliamentary committees are here to advise the parliament, not to dictate to us what we should do.

I have to take slight issue with the minister's language. These are not guidelines—and that is in fact the problem here. These are not guidelines for courts; this is not a list of things that a court must consider before determining whether or not Proceeds of Crime Act proceedings should be stayed. They are not at all a list of matters a court must consider—these are a list of grounds on which a court must not stay Proceeds of Crime Act proceedings. That is very different from guidelines. What the Greens are asking the Senate to do here tonight is agree to include in the Proceeds of Crime Act 2002 a list of grounds on which a court must not stay Proceeds of Crime Act proceedings.

Some might think that we are having a semantic debate here, but I do not think we are having just a semantic debate. I want to gently remind you, Minister, of one of the questions you may not have retained—because you are a bloke!—which was that I asked for clarification on the legislation on this hypothetical ground: if a court formed a view that in the interests of justice it should stay Proceeds of Crime Act proceedings on one of the grounds contained in subsection (2), is it able to act in what it considers to be the interests of justice or not?

I think you will find the answer to that is 'no'. If that is the case, we need to be very clear about what we are doing here. We are preventing a court in Australia from acting in what it believes is the interests of justice. That is almost Monty Pythonesque in its absurdity. You are basically saying to a court: 'You, Justice, can form a reasonable view that in the interests of justice certain proceedings should be stayed, but we are actually going to prevent you from doing that by inserting a list of grounds on which you cannot stay Proceeds of Crime Act proceedings even if you think such a stay is in the interests of justice.' And that is the matter I am trying to explore here, because that is a very serious matter that you are asking the Senate to consider here. Effectively, you are asking us to agree with your proposal that a court be prevented from staying proceeds of crime proceedings even if that court has reasonably arrived a view that it is in the interests of justice to stay the proceedings. I can see you have a response, Minister, so I will sit down and hand over to you.

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

First of all, can I correct an answer that I gave you. In error, I indicated that the advice had in fact come from the Solicitor-General. What I should have told you was that it was the Australian government solicitor. My apologies. In your hypothetical, you are suggesting that a court may in some circumstances be compelled to do a particular thing. It is a balancing act, but I think without a doubt proposed section 319(1) is the overarching discretion of the court to make a decision on the stayed proceedings. It still will lie with the court. And please accept my apologies and retraction for the information I provided in error.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you for the clarification, Minister. That is appreciated. You have bounced us back to the proposed section 319(1), which I accept gives power to the courts to stay proceedings that are not criminal proceedings if the court considers that it is in the interests of justice to do. It is worth reflecting on previous High Court decisions, one in particular that has actually supported that power of certain courts in Australia. Even though we welcome it being explicit in this legislation, we would argue that in jurisprudence that power already has been confirmed by the High Court. But I am specifically asking about a court which reasonably forms a view that it is in the interests of justice to stay a Proceeds of Crime Act proceeding on one of the grounds contained in proposed subsection (2). At the moment, given your responses, I think we have some drafting ambiguity here—in fact that term was used in at least one of the submissions to one of the committee inquiries in relation to this legislation. Again, Minister, I draw your attention to the hypothetical circumstance where a court forms a view that it is in the interests of justice to stay a Proceeds of Crime Act proceeding on one of the grounds in proposed subsection (2). Can the court stay the proceeding or not? That is the question.

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

As I have already indicated, the amendments in proposed subsections (2) to (5) are basically saying what is not sufficient. The case is quite explicit. It is not for a person to simply state if this is the case. All they are asking to do is rather than just simply saying, 'There is another person that may face charges or might have to give evidence in relation to a criminal trial at a future date,' these amendments have the effect of requiring a person seeking that stay to actually explain to the court the risk of the prejudice in the circumstances. But again, we have comfort from proposed section 319(1) that the final overarching discretion of the court is we rely on proposed section 319(1) to stay proceedings. As I indicated and you would know from the report, this area was covered significantly in evidence and in the report. I will not assert something I do not know, because I am not sure about the Australian Government Solicitor's report. I am not familiar with the legal advice, but I think it is a reasonable assumption that these would be matters that they would all have focused upon, and given the comfort that I am advised the government has from the advice from the Australian Government Solicitor, I would think that the advice I am provided with, the proposed subsections (2) to (5) limit but certainly do not remove the overarching discretion of the court under the proposal section 319(1) to stay proceedings. I hope that is clear.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is clear as far as it goes. The proposed new section 319(2) certainly does limit the capacity of courts to stay Proceeds of Crime Act proceedings. I have heard a few times that one of the government's intents here is to ensure that someone just cannot claim a general need to stay proceedings; they need to be more precise about arguing their reasons. I accept that to a degree, but I have to point out that a person could argue detail on one of the grounds contained in the proposed new section 319(2) till the cows come home and the courts still would not be able to stay the proceedings, no matter how much detail was provided. That section is explicit. If that is not the case, Minister, please stand up and say so, so that we can move on to other matters in this legislation. But we have not yet had an answer to the very simple question: if a court formed a reasonable view that in the interests of justice it should stay Proceeds of Crime Act proceedings on one of the grounds in proposed subsection (2), could it stay the proceedings or not? It is actually a 'yes' or 'no' question.

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

Again, I will in a more general sense say that the overarching discretion of the court under proposed section 319(1) preserves the court's rights of overarching discretion and that is in a very lay sense—even I can understand that. I think that deals with this. The amendments clarify that proceedings under the act may only be stayed where the granting of a stay is the only means of addressing the circumstances—that is, potentially the prejudice that may result from a concurrent or subsequent criminal trial.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am genuinely not trying to be difficult here. A couple of times now in response to that question, you have referred me back to the proposed new section 319(1), which you described as—I do not think I am misquoting you—an overarching discretion of the court. It might be worth referring you to the Australian Human Rights Commission's submission to the Senate Legal and Constitutional Affairs Committee section 5.1, which starts at paragraph 33. It is actually headed: Ambiguity in drafting. This is the point I am trying to make. What I am trying to do here is place on the record the government's intent because that may become a question in subsequent High Court proceedings. So is it the government's intent that a court that is hearing a Proceeds of Crime Act matter can in fact stay proceedings on grounds contained in the proposed new section 319 subsection 2? Does that overarching discretion of the court retained even on grounds that are listed in proposed subsection 2—in other words, does proposed 319(1) override proposed 319(2) or does proposed 319(2) override proposed 319(1)?

My reading of this is pretty clear, as someone who has sat for through an awful lot of similar debates in the Tasmanian parliament for well over a decade as the Greens justice spokesperson. My reading of this legislation is that the court retains an overarching discretion to stay proceedings but not on any of the grounds contained in the proposed new section 319(2). That would be my reading of this legislation. I am simply trying to distil the government's intent here. Is it the government's intent that a court cannot stay proceedings on grounds listed in proposed section 319(2) even if it believes that it is the interests of justice to stay those proceedings?

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

The court is not able to stay proceedings merely on the grounds on proposed section 319(2). The court will need to consider, as it does in almost every case, individual circumstances of the case. To determine whether there are reasons on that ground, such as the risk of prejudice, which is what it is about, to determine a stay is necessary in the interests of justice.

Whilst I am on my feet, we thought it was important in the context of the amendments that you have moved, you have effectively removed subsections 319 (2) and (5), and I understand why that is the case. The challenge is that that would not then be able to prevent a respondent from obtaining a stay and delaying the determinations of a proceeds-of-crime proceeding simply put simply by claiming there was a risk of prejudice in a related or concurrent or subsequent criminal proceedings. As I started off in response to you, I will describe what I thought was—

Progress reported.