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Legal and Constitutional Affairs Legislation Committee
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
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Legal and Constitutional Affairs Legislation Committee
Collins, Sen Jacinta
Macdonald, Sen Ian
Wright, Sen Penny
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Legal and Constitutional Affairs Legislation Committee
(Senate-Wednesday, 20 May 2015)
Senator JACINTA COLLINS
CHAIR (Senator Ian Macdonald)
Senator JACINTA COLLINS
Senator JACINTA COLLINS
Senator JACINTA COLLINS
Senator IAN MACDONALD
- Senator JACINTA COLLINS
Content WindowLegal and Constitutional Affairs Legislation Committee - 20/05/2015 - Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
ADSETT, Mr David, Deputy Director, Commonwealth Director of Public Prosecutions
BROMWICH, Mr Robert, Director, Commonwealth Director of Public Prosecutions
COLES, Mr Anthony, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department
HEARD, Mr Jim, Acting General Counsel, Legal and Policy Branch, Attorney-General's Department
SMITH, Ms Catherine, Assistant Secretary, Crime Prevention and Federal Offenders Branch, Attorney-General's Department
TCHAKERIAN, Mr Berdj, Assistant Director, Commonwealth Director of Public Prosecutions
CHAIR: Ms Smith and gentlemen, thanks very much for your attendance. We have received a submission from the DPP, which we have numbered as 12. You are all aware of parliamentary privilege and the protection of witnesses. You are probably also aware—but I will repeat it—that the Senate has resolved that an officer of a department of the Commonwealth should not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to a superior officer or the minister. This resolution also prohibits questions that ask for opinions on matters of policy and does not preclude questions that ask for explanations of policies or factual questions about how policies were adopted. If any of you want to make a short opening statement, we would appreciate that. Does anyone wish to make an opening statement?
Mr Coles : Yes, thank you. With your agreement, Chair, I thought I might just make a few brief remarks and then pass briefly to my colleague Ms Smith and then to the Director of Public Prosecutions, Mr Bromwich.
CHAIR: All right. If any of you up-front want to save us the necessity of asking the question, if there is anything you have heard in evidence from other witnesses that you want to comment upon, it might just save us asking the question.
Senator JACINTA COLLINS: Just on that point, may I raise a matter regarding submissions from departments.
Senator JACINTA COLLINS: We had this discussion at the hearing the week before last, I think, whilst you were away, and it may be particular to this committee; I am not sure. I have found it most helpful in the past if departments actually have a look at the submissions that have been provided to us and provide us with a submission which addresses those matters, and then we can move to questions arising from that. So I am hoping that, at least in the opening statement, you can do that. From the committee's point of view, we find it far more useful if a written submission in advance has been provided to that effect. It does not seem to be the practice in this committee.
CHAIR: I think it has been raised before as well. It is helpful to the committee if someone looks through the submissions. With some of the submissions that are clearly inaccurate for lack of fact, it helps the committee if that is pointed out by the department, which has the resources and the knowledge on why these things happen. There will always be differences of opinion, but where there are clear factual disagreements with some of the submitters—without giving us a tome—if you could just alert the committee, it saves us time, bearing in mind that we usually have limited time to question all witnesses.
With those very lengthy opening remarks, Mr Coles, I refer to you now.
Mr Coles : Thank you, Chair. I had not actually proposed to make opening remarks, but I note that this morning the Minister for Justice, the Hon. Michael Keenan, launched a new report, which is called Organised crime in Australia 2015, along with the CEO of the Australian Crime Commission, Mr Chris Dawson. I thought it might just be useful to very briefly summarise some key findings, because I think they give some useful context to the discussion today.
The key findings in the report are: that organised crime still relies on the illicit drug market as its principal source of profit and more than 60 per cent of Australia's highest risk criminal targets are involved in the methamphetamine market and are driving the market's expansion; next, that organised crime is exploiting new technologies and online environments, including online scams, identity fraud, credit card fraud and exchange of illicit items such as firearms and drugs through online 'dark net' transactions; and, third, that organised crime is integrating criminal activities into legitimate markets, including laundering money through legitimate industries such as real estate and using the freight industry to transport illicit drugs, and it is truly globalised, with little fear of state, federal or international laws.
In launching the report the report today, the minister said that the government's first priority is to keep our nation safe. We have the best law enforcement authorities in the world that are committed to doing just that. Thank you. I will just pass to my colleague Ms Smith.
CHAIR: Mr Coles, with estimates coming up all next week you might—I am sure you would do this anyway—get the secretary to also make those comments on that in that more prominent hearing.
Mr Coles : I certainly will.
Ms Smith : I was not going to make an opening statement either but I noted in a couple of submissions in evidence this morning there were comments made about the need to get more involved in community awareness in the area of forced marriage. I thought it might be useful if I tell you about some of the things we are actually doing in that space.
To support the implementation of the 2013 legislative amendments, the government has undertaken a number of education and awareness raising initiatives on forced marriage. In December 2014, the Minister for Justice launched the Forced Marriage Community Pack, a suite of best practice information tools for front-line officers, service providers, vulnerable groups and the general community. These were developed in collaboration with civil societies and non-government organisations. The pack includes a frequently asked questions fact sheet on how to develop a safety plan; a small, foldaway booklet for at risk individuals, which we are hoping will go in the wallets of young girls and young boys who are at risk; an information booklet for agencies, community organisations and service providers—and selected materials are currently being translated. We hope to be able to launch those very soon.
Since April, a number of members of my team have been hosting workshops throughout Australia to raise awareness of forced marriage issues amongst front-line workers in both government and non-government organisations, especially those who are likely to come into contact with people at risk of forced marriage, people like teachers and front-line medical practitioners. We are also working with three non-government organisations to deliver projects that fill the gaps between what we are offering. That includes delivery and awareness raising.
Anti-slavery Australia is expanding its existing legal practice, including the provision of individualised legal advice to people in, or at risk of, forced marriage via an email and text message network. The Australian Muslim Women's Centre for Human Rights is developing an education program and increasing the capacity of community organisations to work with young women, children and families where there is a risk of forced marriage. Also, the Australian Catholic Religious Against Trafficking in Humans has an education program on forced marriage for teachers, support staff and students across government, Catholic and independent schools. I think we heard earlier about some statistics, but since 2013 there have been 42 referrals of forced marriage to the Australian Federal Police, of which they have investigated 34, with the youngest girl aged 12. I thought that might be useful background.
Senator IAN MACDONALD: Thank you.
Mr Bromwich : I will try to keep myself within the time limit but I think in light of the opening points it may be useful that I do make some observations which also encompass what has been said in some of the submissions. I was intending to confine the opening statement to three topics, the first topic being the reintroduction of 'knowingly concerned'. The second topic was the change to 'recklessness' for the fault element of what the substance is for serious drug offences, and the third topic was the removal of the manufacturing element for precursor offences.
By way of an overview of the three proposals, our stance is that if those proposals were adopted it would make a significant difference to law enforcement resourcing and outcomes, with a particular impact on organised criminal activity, in particular within the serious ice problem confronting our community. Our view is that it will do so without any loss of fairness or any other adverse, in the sense of being unfair, outcomes.
I will now turn to the 'knowingly concerned' proposed amendments. The Law Council of Australia's submission and the Liberty of Victoria's submission each demand evidence of significant impediments faced by my office in the absence of the concept of 'knowingly concerned'. The Law Council of Australia goes a little further to say that the focus should be on actual cases and in the public arena. I suggest, and of course it is a matter for the committee, that the committee consider that what the Law Council of Australia seeks in particular goes well beyond what is usually needed for sensible and obvious tailored law reform of the kind that, for example, took place in recognising the significant defect in the code which led to section 11.2A—the joint commission offences—being put in. The suggestion that the code is somehow perfect and can remain fixed in stone is plainly wrong; 11.2A filled a massive hole in relation to joint commission. This is a similar hole and, in fact, in a practical sense it may be a bigger hole, but I am happy to give examples after my opening statement if the committee would be assisted by that. What I suggest with respect to the Law Council and to the committee is that the better approach may be to try to identify any problems that actually arose between 1910 and 2011—the 90 years that 'knowingly concerned' was in place—and I can reasonably confidently say that they will look in vain. 'Knowingly concerned' worked extremely well. It was clear, it was well understood and it had the singular virtue of describing what someone actually did.
Senator JACINTA COLLINS: Just before you go on, you mentioned to 2011. I thought that—
Mr Bromwich : Sorry, I meant to say 2001.
Senator JACINTA COLLINS: So whilst the code came into place in 1995, this principle survived until 2001?
Mr Bromwich : No, the code act was passed in 1995. It commenced operation in terms of the principles of criminal responsibility, but only a smattering of offences, in 2001. Then the balance of the code commenced in 2005. What happened in 2001 is that the code commenced, but it operated with the existing drug offences in the Customs Act in section 233B. Then four years later the code drug offences came in—so we had a pre-code, code applying to the Customs Act and then code offences for drugs. Does that help?
CHAIR: Did you say that 'knowingly concerned' had been the law of the Commonwealth from 1901?
Mr Bromwich : It was introduced in the Customs Act in 1910, and it was introduced with the start of the Commonwealth Crimes Act in 1914. So it has been since 1910 in the Customs Act in 233B, and in 1914 it started in section 5 of the Crimes Act 1914. It still exists in a long list of Commonwealth statutes. I can take the committee to that if that will assist.
Senator JACINTA COLLINS: That would be helpful.
Mr Bromwich : I can identify that now or later; whichever suits.
CHAIR: And it was stopped in Commonwealth law in 2011?
Mr Bromwich : I made a mistake. It was 2001.
CHAIR: It was stopped in 2001, and it is now being reintroduced in relation to these specific offences?
Mr Bromwich : No, generally. It existed generally in section 5 of the Crimes Act 1914. What happened was that the Gibbs committee chaired by Sir Harry Gibbs, the Chief Justice of Australia, said, and his committee recommended, that 'knowingly concerned' be retained. They did so on the basis that 'knowingly concerned' dealt with an area that was not covered by 'aid, abet, counsel or procure'. So the Gibbs committee specifically looked at that at the request of the then director, Mark Weinberg, the second director, and came back and said that it should be retained. The model officers committee took a different view and recommended that it not be retained. In the sweep of history, sometimes one side of a debate or an argument gets it right and the other side gets its wrong. In many other areas I am sure the model officers committee got it right.
CHAIR: Without asking you to express a personal opinion, do you recall the thinking behind the then Attorney or the then government—or the then officers committee, perhaps?
Mr Bromwich : There were two aspects. One aspect was a view that it was not really needed; that it was covered by 'aid, abet, counsel or procure'—
CHAIR: That is the Law Council's submission.
Mr Bromwich : And that is wrong. I can take you to that; that is plainly and obviously wrong, and it is wrong on a daily basis for us. There was another view that it was too open-ended and that it was somehow too vague, but that was not our experience. The law on this was reasonably clear and it was well understood—and, in fact, it had none of the opaqueness that you sometimes see with concepts like 'aid and abet' which are not part of ordinary language.
CHAIR: Okay. We are interrupting you, but I just wanted to ask you something while you are on that subject.
Mr Bromwich : That is okay; I am happy to help in any way I can.
CHAIR: We will come back to your opening statement. The Law Council made what I thought was a good submission, that this then means that you have two different standards between the various state laws and what will now be the Commonwealth law which, as they indicated, made it very confusing where both laws were being impacted in jury trials. I am not sure that I have accurately summarised it, but you have probably seen their submission anyway.
Mr Bromwich : The area in which 'knowingly concerned' will undoubtedly be most frequently used—not exclusively, but most frequently used if it is introduced—is in relation to drugs. What in fact happens now is that we have to sometimes use the state version of 'knowingly concerned' in New South Wales—which is the biggest area for this—because there is not a Commonwealth version available.
CHAIR: What about the other states?
Mr Bromwich : I think there is a similar concept, at least in some other states, but I would have to take that on notice.
CHAIR: But not all of them. Okay.
Mr Bromwich : It varies a bit. But, for example, in New South Wales the definition of 'supply' in the Drug Misuse and Trafficking Act 1985 has a phrase in it called 'knowingly take part in', which has a very similar ring to 'knowingly concerned'—it essentially means the same thing. And we sometimes need to charge a 'knowingly take part in supply', but that does not help us for importation. It only helps us for a post-importation domestic supply. So it exists in state law, at least in New South Wales, which is the biggest jurisdiction.
CHAIR: And this law will coincide the Commonwealth law with at least the New South Wales law.
Mr Bromwich : Yes, it will harmonise it; and with the ACT, which has 'knowingly concerned'.
CHAIR: Okay. We will come back to your opening statement, Mr Bromwich. Senator Collins?
Senator JACINTA COLLINS: Yes; just as Mr Bromwich offered to provide some of that further information, can I say that in looking at the material that has been available to us today, the case does not appear to have been made out. I have had a brief opportunity this morning to look at the minister's response to the scrutiny committee on this point and, apart from one comment from a New South Wales judge, if I recall correctly—and I am sorry, I have only had an online version of this; I am trying to adapt to it—and apart from assertions that there are cases, we have very little material in front of us to weigh. If you can provide that more detailed information, I think it would be most helpful to your case.
Mr Bromwich : Certainly. The areas where it is most sharply focused are live, ongoing operations, decisions made as recently as last week for major drug importations—
Senator JACINTA COLLINS: And whilst we understand there will be cases that you cannot refer to in detail for that reason, even some sort of description of the nature and the quantum—
Mr Bromwich : Certainly. I was proposing to do that shortly.
Senator JACINTA COLLINS: Good.
Mr Bromwich : I will come back to, if I may, other areas where this does exist. It does exist in quite a number of federal statutes and it does exist in the ACT and in British law as well. What I can say is that I and my most experienced prosecutors who were around when 'knowingly concerned' was here—we do know the real and significant impediment we face in not having it. The reality of any reasonably organised criminal activity with multiple participants is that there is a division of roles and responsibilities, and only limited people at the very top may have an overall picture of what everyone involved is—who they are, and what their different roles are.
What this means is—and I will come to the specific examples Senator Collins asked for some indication of—that one day-to-day reality that I face is that I am regularly called upon to give consent to conspiracy charges because that is the only practical way to overcome the real and substantial gaps in federal criminal law that the loss of 'knowingly concerned' has created for organised criminal activity.
Conspiracy is a most undesirable way to overcome those gaps. It is harder and much more expensive to investigate and it is harder and much more expensive to prosecute, because the focus must necessarily be on the entire group and the entirety of the criminal enterprise. You have to show the existence of the agreement, which constitutes the conspiracy, and you have to show participation in it before the co-conspirators rule can work.
Importantly, conspiracy is also harsher on the individual defendant, because they are fixed with responsibility for what the entire group has done rather than for what they alone have done, including on sentence, and sentences in those circumstances can be harsher.
Used as a substitute for 'knowingly concerned', conspiracy is a poor, harsh and undesirable solution to an easily fixed problem by returning to what worked well for decades. The gaps that now exist are in two broad categories—and this may provide Senator Collins with what I was referring to. The first gap is for persons who are not hands on for offending and were only involved by being in fact knowingly concerned in the offence committed by others. This gap is notable in drug importing but also for fraud and commercial offences such as insider trading. It has significant potential application to organised child exploitation rings and would greatly assist also with organised commercial online sexual offending where the person sought to be prosecuted is not the person actually directly dealing with, for example, the child pornography but is knowingly concerned in that dealing. 'Knowingly concerned' catches arm's length financiers and organisers who cannot be shown to have committed the principal offence and are not caught at all or are poorly caught by the concepts of 'aid, abet, counsel or procure'. So that is one broad category.
The second category—and it is probably numerically the greater category—is what I would call the next-in-line offences such as those who collect drugs or receive delivery of drugs immediately after importation. That is a category that is very common and one that is often not captured by 'aid, abet, counsel or procure'. They have not committed the before offence of aiding or abetting the principal offence—that is the counselling or procuring the principal offence. They have not committed the counselling or procuring, nor have they committed the during offence of aiding or abetting. They are next in line. They are the recipients after, particularly, the importation has taken place. They cannot be shown—or at least it is very difficult to show but often not all—to have helped or encouraged or induced the principal offender to commit the offence, which is what the language of the High Court in Giorgianni deals with in terms of aid, abet, counsel or procure. But they are involved in acts that implicate or involve them in the offence committed by others. There is the practical connection. Mere knowledge is not enough and the full test in Tannous can apply.
In short, 'knowingly concerned' can cover what is covered by 'aid, abet, counsel or procure' but the reverse is not true, particuarly for that next-in-line offending. When you think about it, that is one of the most common categories we deal with in terms of drug importing. The drugs are brought here by a courier. The drugs are brought in by a shipping container or the drugs are posted to Australia. In any of those three circumstances, the recipient of the drugs may not have—or may not be able to be shown that they have—had a prior involvement, yet they are undoubtedly knowingly concerned in importing. That is why we have to use conspiracy in that situation, because we capture the agreement when we can—and sometimes it is very difficult—that brings them to the point of collecting the drugs. 'Knowingly concerned' was most commonly used for this common area of usage. You have the courier that has come in and the person who then collects from the courier, the shipping container that comes in or the postal importation.
The Law Council of Australia's submission and the Liberty Victoria submission contain some important errors of fact and law in a couple of areas—three areas, in particular. There is their commentary on Campbell's case—and I have to insert a slight cautionary note in that, because I acted for Mrs Campbell; I was the one who designed a successful appeal point. The successful appeal point largely arose as an underlying matter because there was no offence of 'knowingly concerned'. It certainly would have been highly detrimental for my former client had 'knowingly concerned' been available. The second relates to the post-Campbell definition of 'import'—and there is simply a lack of understanding of how this actually works legally or factually in the responses there. The third is in relation to their views about the Court of Criminal Appeal's decision about 'knowingly concerned', and it is clear that the honours did not agree that 'knowingly concerned' added little to the traditional formula. Each of the submissions portray a lack of understanding of how 'knowingly concerned' operates.
Let me deal briefly with Campbell. In that case the charge was import. Mrs Campbell ran a furniture importing business. The person who was organising the furniture was also putting consignments—a large consignment, ultimately—of cold tablets, some two million tablets, 90 kilograms, 70 times the commercial quantity, into a shipping container. She was not, except in the most technical sense, the importer, because it was just the container that she was importing. There was no 'knowingly concerned' available to be charged with, and therefore she was charged with being the importer. The end result in that case was that after her successful appeal she pleaded guilty to being an accessory after the fact, which is a two-year maximum offence, as I said for a case involving 92 kilograms of pseudoephedrine—some two million cold tablets. What had happened in the case was that the Federal Police did not have time to carry out a substitution. There were 36 boxes of cold tablets, large boxes. They took 12 of the boxes out and went through with a live delivery of the other 24. The post-Campbell amendment to the definition of 'import' in section 300.2 effectively took into account that circumstance—that is, the circumstance of no substitution. The trouble is that the Federal Police in the meantime had decided that it was unsafe for the public to continue to not do full substitution, and the simple fact of the matter is the Federal Police, acting entirely properly in my view, do 100 per cent substitutions, and what that means is the definition of 'import' does not continue after the point of official detection. As soon as the drugs have been seized, the import ends because the drugs are seized. What then continues is a substitute—inositol for cocaine, plaster of paris for heroin, and empty boxes more commonly than not for other things.
CHAIR: So Mrs Campbell was part of the deal?
Mr Bromwich : She was importing furniture and someone else was putting things in her shipping containers. She had nothing to do with them, she did not want anything to do with them, she tried to stop them from putting them in there, but those attempts were unsuccessful.
CHAIR: Would she, under this new law, be liable—
Mr Bromwich : She could be liable for being concerned. She knew what was happening—it had happened on six prior occasions.
CHAIR: So she knew it was happening but she did not report it to the authorities?
Mr Bromwich : That is right.
CHAIR: And that is where she would get into trouble under this new law?
Mr Bromwich : She was a lovely lady but she was an ostrich—she put her head in the sand and hoped it would all go away.
Senator JACINTA COLLINS: She turned a blind eye.
Mr Bromwich : In a sense.
Senator WRIGHT: Was it because of fear of repercussion if she did go to the authorities?
Mr Bromwich : No, the evidence in the trial was her fear that the fellow would stop helping to send furniture to Australia.
CHAIR: Dr Neal mentioned the Somali man who knew that Holsworthy was about to happen but before he could do anything he had to get the approval of the Imam. That is a very bad summary of it—
Mr Bromwich : This is the Operation Neath matter.
CHAIR: Yes. You are aware of the case.
Mr Bromwich : I am aware of Operation Neath and I am aware of some of the detail of the case. It was before my time as director, but I do have a reasonable understanding of the case.
CHAIR: Dr Neal was saying he defended him and took it to the High Court, but he lost on the basis that this guy was trying to do the right thing but, before he did it, he had to check with the imam that it was in order. This is a bad description. He had to get the approval of the imam to say, 'Yes, it is wrong and so you should do something about it,' which he did; but he was charged. My question is: under what section was he charged, if 'knowingly concerned' was not then—
Mr Bromwich : I would have to find out what that was. It might have been some kind of accessory. It could have been an ex preparatory, which would have been sitting within the particular offence provisions for the terrorism offences. The terrorism offences operate on the basis of early intervention. So it operates at an earlier stage than most other kinds of offences. It is earlier than 'attempt'; it is often earlier even than 'conspiracy'. It acts preparatory, and that is designed to nip these things in the bud so that we do not wait until—
CHAIR: He was not involved but he knew about it.
Mr Bromwich : I am not aware of any offence which could make you criminally liable for merely knowing about it, other than perhaps in New South Wales where there is a statutory version a misprision of a felony in section 316 of the Crimes Act 1900, which is a failure to report a serious indictable offence, but that is after the offence has taken place and does not apply federally in any event.
CHAIR: Again, I have clearly misunderstood this and I do not want to verbal Dr Molt in her evidence, because I have no doubt got it wrong.
Mr Bromwich : I can find out.
CHAIR: Could you, on notice. Just have a look at Dr Molt's evidence in Hansard.
Mr Bromwich : Mr Tchakerian is making a call to the deputy director, who is in charge of counterterrorism and who also knows that case. Although it was targeted at Holsworthy, it was prosecuted in Melbourne. He may be able to give us that answer before I finish.
CHAIR: I am just trying find out under what law he was then charged and if he was then successfully convicted under that law—
Mr Bromwich : The threshold for 'knowingly concerned' would be higher than the circumstances that you have described—but we will find out.
CHAIR: All right. I have interrupted you again.
Senator JACINTA COLLINS: I have a further thing on which I need to interrupt you there, because I want to make sure I do not misunderstand Mrs Campbell. Did I hear you correctly, Mr Bromwich, to say that, if 'knowingly concerned' had existed, that would have been problematic for Mrs Campbell.
Mr Bromwich : It would have been problematic in the sense that she would not have had the option of defending the import, but the thing about 'knowingly concerned' is that it allows you to tailor the offence and the circumstances of the offence to the conduct. She could have had a very decent argument on a 'knowingly concerned' for an even lesser sentence than the one she ended up serving, because it tailors to the conduct. If someone's 'knowing concern' meets the description of the offence but it has a low level of participation then that can be reflected in the way in which the court looks at it. She was not—
Senator JACINTA COLLINS: As long as there isn't minimum mandatory sentencing?
Mr Bromwich : I have not been asked about that. Perhaps that is something I would rather stay away from. She squarely fitted the description. She was aware that the stuff was going into a container. She tried to stop it from happening.
Senator JACINTA COLLINS: To some degree.
Mr Bromwich : To some degree; but she did not refuse then to have anything to do with the fellow and it happened over and over again.
CHAIR: Her crime, which she was not convicted of, was not reporting it to the authorities when she knew about it.
Mr Bromwich : Her crime was an accessory after the fact. That is what she ultimately was pleaded to, and that was probably a fair representation just as 'knowingly concerned' would have been a fair representation of what she did.
Senator JACINTA COLLINS: But the evidence we received earlier about 'knowingly concerned' was that you will ultimately be charged with the offence rather than some lesser charge that might be more appropriate.
CHAIR: You are actually convicted of the principal offence.
Mr Bromwich : You are convicted if you use the language of the New South Wales statute of 'knowingly taking part' in the offence, and it is tailored to your role. If your role is a very minor role then that is reflected in the allegation and, ultimately, if you are convicted, in the sentence if you have got a major role. 'Knowingly concerned' is flexible to that extent. It tailors to the evidence. If you are 'knowingly concerned', but in fact you are the whole person who is behind the thing—you are the financier—that is able to be reflected. If you are simply someone collecting it, then that will be reflected.
CHAIR: But in Mrs Campbell's case, she was not charged as an accessory after the fact—
Mr Bromwich : She was in the end.
CHAIR: She was. Under this law, did you say it carries a two year—?
Mr Bromwich : A two year maximum.
CHAIR: Under this law, she would be charged not with being an accessory after the fact but being a principal offender. She had nothing to do with it except that she knew it was happening.
Mr Bromwich : Whether or not the evidence would have got over the line, the offence is that of being 'knowingly concerned'. It is still a secondary participation offence just as 'aid, abet, counsel or procure' is a secondary participation offence. What I am really trying to say is, in this area, what you have is the principal offence and the principal offenders, and you have those who are, in one form or another, in an accessory role either to the actual commission offence or as someone who is 'knowingly concerned' in it. You have 'counselled' or 'procured' someone to commit it; you have helped someone to commit it, or you have been 'knowingly concerned' in its commission. Classically, as I say, the area in which it is most commonly used is for the person who is collecting the drugs from a motel room, from the courier, from the shipping container or from the post office.
CHAIR: That is different to Mrs Campbell, because she had nothing to do with it except that she knew it was happening. She would be charged under the new law with the principal offence and be subjected to the range of penalties of the principal offender. That is a question. Is that not correct?
Mr Bromwich : She would be charged with 'knowingly concerned', but it tailors to your conduct.
CHAIR: And the penalties for 'knowingly concerned' are the same as those for the principal offence?
Mr Bromwich : The maximum penalty. But, of course, there is no minimum. There is no minimum penalty.
CHAIR: There is no minimum penalty on 'knowingly concerned'?
Mr Bromwich : No. It goes from zero to the maximum.
CHAIR: What is the mandatory sentence for?
Senator JACINTA COLLINS: That is a different provision in the bill.
Mr Bromwich : There is no mandatory minimum.
CHAIR: That is for firearms.
Mr Bromwich : Yes. That is right. Subject to advising you on any other offence or other provisions that have 'knowingly concerned' in federal law, from our point of view 'knowingly concerned' is clearer than 'aid, abet, counsel or procure'. If it is clearer, it is also fairer. It tailors to the conduct and it fills a gap. It fits the gap particularly in the different areas I have identified and that we have referred to in our written submissions. I might just mention what those other provisions are, if that is of assistance.
Senator WRIGHT: Can I just interrupt to say that it may not be the last word on 'knowingly concerned', because I have some questions to ask about that as well.
Mr Bromwich : Sure. I am in your hands, Chair.
CHAIR: Sorry, Senator Wright. Did you just want to interpose there?
Senator WRIGHT: I just wanted to indicate that it sounded as if that might be the end of the discussion about 'knowingly concerned'. I have some further questions on that.
Senator JACINTA COLLINS: He is still in the opening statement!
CHAIR: He is still doing the opening statement.
Senator WRIGHT: I beg your pardon. It is a bit hard to follow sometimes when you cannot see.
Mr Bromwich : I am a long way from being off the hook! I was going to be much shorter on the other two areas and then progress after that. The second area I was going to make an opening comment on was the change to 'recklessness' as the fault element for 'attempt' in relation to serious drugs. Of course, and it will already be apparent, it is important to recognise and acknowledge that this change is directed only to the fault element of what the substance was and not to the actions constituting the attempt itself. The change from 'intention' to 'recklessness' for the substantive offences took place with the change from the Customs Act to the code when the code offences came in in 2005. This change therefore will align the offences so that the fault element of what the substance is for an 'attempt' will be the same as for the substantive offence. Again, this amendment, in a practical sense, is directed to the longstanding reality that the AFP avoid risk to the community by making 100 per cent substitution of drugs before allowing the consignment to continue as though that had not occurred. In the past, at least, some of the drugs remained—sometimes all of the drugs—which was discontinued by the AFP because of that risk. Because of that police intervention, the subsequent dealing with the consignment will not constitute a substantive offence because there are no longer any drugs there. This has resulted in an anomalous and unfair situation whereby the courier caught with the drugs has a fault element for the offending of 'recklessness' as to what the substance is, while the recipient of the substituted consignment—be it obtained from a courier, from a shipping container or from a post office—who must be charged with 'attempt to possess', solely because of the substitution, has the much higher fault element of 'intention' or 'knowledge'. There is no material difference between a person bringing drugs into the country and a person collecting drugs at the next stage. And it seems incongruous that a police initiative to make our communities safer makes dealing with those responsible for the drugs otherwise entering our community harder. It is also incongruous that we should make importing drugs by post less risky than doing so by courier. It is worth noting in that regard that there has been a very marked increase in the level of postal imports, and I understand that the spread of ice into regional and remote Australia has been facilitated by postal imports. So this is a practical and fair contribution in the law enforcement aspect of the response to the serious and growing problem of ice, and of course there are other aspects as well. I do not know if the members saw the Four Corners program on ice in regional and remote Australia, but that was deeply concerning.
The third area was the removal of the manufacturing, physical element for precursors. It is common knowledge, of course, that there has been a massive increase in the use of ice, and that has been possible partly due to a marked increase in the importation of the border controlled precursor pseudoephedrine which is used to manufacture it. Day to day we also see the difference if you go to get cold tablets from a chemist in many parts of Australia where you have to produce a driver's licence before you are able to purchase your Codral, if you are looking at original Codral.
The rationale for keeping separate the proof of 'intended manufacture' has therefore not kept pace with this development; nor has it kept pace with the organised nature of these importations using technology. There is at least a reasonable argument that there is no longer a sound reason to require that element for the offence and that border controlled precursors should be prohibited drugs in their own right at the importation stage, just as they are in their own right at the domestic stage—certainly in New South Wales. These are cases dealing with circumstances in which there is no legitimate purpose in importing them because legitimate importations are fully covered by the code. It is important also to note that this proposed change does not apply to the 'possession' offence in section 300.2, which retains the 'manufacture' element. It is also not an element in the Customs Act offence for importing tier 1 goods, or exporting tier 1 goods, for that matter, which carries a five-year maximum. Essentially, in this area, the real practical effect of this is to significantly increase the penalties recognising that border controlled precursors like pseudoephedrine are not relevantly distinguishable from controlled drugs.
It has gone a little further than my three to four minutes, but that is what I had in mind, and then I was going to mention just the other acts, if that is convenient, and then I will doubtless be getting some questions. I will just mention quickly what those acts are. There is section 79 of the Competition and Consumer Act, which was the Trade Practices Act; section 48 of the Building and Construction Industry Improvement Act 2005, which I think has now been renamed as the Fair Work (Building Industry) Act 2012; section 45 of the Criminal Code 2002 in the ACT; section 79 of the Corporations Act 2001, which deals with civil matters not criminal matters; section 484 of the Environment Protection and Biodiversity Conservation Act 1999; section 94X of the Income Tax Assessment Act 1936; section 126-264 of the Income Tax Assessment Act 1997; and three different sections of the Migration Act 1958—140ZC, 140ZF and 255AO. There was a string of other acts that also had it, but they seem to be the core ones that were worth raising for the committee's knowledge and attention.
CHAIR: For clarity, all of those acts you just mentioned—and others perhaps as well—do have a 'knowingly concerned'—
Mr Bromwich : Not for criminal, but for civil penalty, for example, for cartel provisions. When the Australian Competition and Consumer Commission brings actions against individuals, because usually the principal offence is committed by a company—I did quite a bit of work for the ACCC at the bar—'knowingly concerned' was virtually always in the pleadings, every time. I meant to say of course in the Criminal Code ACT, that is a criminal 'knowingly concerned'.
CHAIR: And that has always been in the ACT act?
Mr Bromwich : No, it got introduced in 2010. So they started the code without it and they introduced it five years ago. I understand it is well used.
CHAIR: That provision was in the Fair Work Act originally, which you said was amended in 2012, but it remained after the 2012 amendment.
Mr Bromwich : It was a renaming of the act, so it has been there since the act was brought in in 2005. For example, it deals with union members. We had a recent case which directly dealt with unlawful industrial action—
CHAIR: My question more was that it was amended in 2012 but that clause remained. It was not deleted or amended in 2012.
Mr Bromwich : It has been in there since 2005. I have got some actual examples if you would like to hear of them as well.
Senator JACINTA COLLINS: Perhaps you could provide that on notice.
Mr Bromwich : I am in your hands.
Senator JACINTA COLLINS: It will depend on how much time we have.
Mr Bromwich : I have to be a little bit careful because some of them are live cases.
Senator JACINTA COLLINS: That is why it might be easier for you to do that on notice and reflect on how you are doing.
Mr Bromwich : I know what I can say about them.
Senator JACINTA COLLINS: Consultation around the 'knowingly concerned' changes—
Mr Bromwich : I would have to defer to the department in relation to that.
Senator JACINTA COLLINS: The impression we have at this stage from the evidence—and the department may want to address that—is it was changed in the code. We have now got a better sense of the timing of that, thank you. There have been a couple of attempts to reprosecute, which have failed, and now it is here. Is that a fair characterisation?
Mr Bromwich : Prosecute in the sense of had the reintroduction of 'knowingly concerned'—
Senator JACINTA COLLINS: Dealt with through the expert committee.
Mr Coles : If you were referring to the expert committee around the drafting of the model code, and I think you were, as you heard earlier, that was a process that spanned quite a number of years. My understanding is that the last report that committee provided to ministers was in late 2013 and that was to the then Standing Council on Law and Justice.
Senator JACINTA COLLINS: What is called now?
Mr Coles : The Law Crime and Community Safety Council. I would have to check this but my understanding is that that drafting committee has not been reconstituted for the purpose of the new council.
CHAIR: What was the 2013 opinion of this?
Mr Bromwich : I would have to take that on notice. I am not sure. They were not just looking at 'knowingly concerned'. They were looking across the span of the code.
CHAIR: Again, without verballing Dr Neal, I think he said that that committee had looked at this number of times and had deliberately not recommended. Again, that is my very poor recollection of what he said. I think he was talking about earlier times, as well. I am curious to hear that the committee did sit in 2012; I am wondering whether they did have a view on that. That was one of the concerns, that it would split the state and federal law, although Mr Bromwich has suggested that is perhaps not as important as was suggested to us.
Mr Coles : I think I would go back to what the director said earlier—I do not think we are resiling from the fact that there was a difference of views early on in the process as to whether the retention of 'knowingly concerned' was appropriate or not. But that was a long time ago and, as you have heard, the experience of the DPP in the meantime has been that it does represent a very significant gap.
Senator JACINTA COLLINS: But what we have also heard is that this case has been prosecuted possibly twice through the criminal code consultation process and not succeeded. This committee would like to see the nature of those reconsiderations and have some sense of why they failed.
Mr Bromwich : My understanding is that the need for joint commission was also sought to be prosecuted, was also refused at each stage and it was only when the High Court said you have not got joint commission that it was able to be brought in. We had to struggle with it for years.
Senator JACINTA COLLINS: I am not pretending that this process might be perfect, but it would be useful for us to understand how this issue has travelled since it was removed from the code. You have provided us today with case examples and when we get them on notice we will have a better opportunity to see how it has been working. To date the responses to our scrutiny processes have only included the assertion with no detail behind the assertion and it would be useful for us to understand that. Mr Coles, am I correct in understanding that the ministerial council now essentially does not have that sort of expert committee or process to consider these matters any more?
Mr Coles : I would like to go away and get you better information on that, but that is my understanding—that that officers committee has not been reconstituted to advise the new ministerial committee.
Senator JACINTA COLLINS: The concern I have there, then, is the concern that the Law Council raised this morning, which is about national uniformity as well. Does this take us away from national uniformity—and obviously we will have to weigh that against the additional pieces of legislation that Mr Bromwich has referred to today as well. That was the clear concern raised by the Law Council this morning.
Mr Coles : The reality of the model code process is that, notwithstanding that it was a long-running process, only the Commonwealth, the Northern Territory and the ACT have adopted the model code, and even chapters 1 and 2 of the model code, which set out the general principles of criminal responsibility that were endorsed by Standing Council of Attorneys-General more than a decade ago, have not been enacted by the majority of jurisdictions. In the meantime, the reality is that the Commonwealth and operational agencies including the DPP need to be able to respond to the day-to-day challenges that the director has outlined.
CHAIR: The fact that the states do not agree to it is not fatal, or in some cases even relevant—but it was an issue raised that it would cause confusion and conflict in cases where state and federal laws were both involved and yet there were different standards.
Mr Bromwich : I do not believe there is any substance to that in the drug area at all—in fact, I think the state police who work with the Federal Police in the drug area would uniformly welcome it.
CHAIR: Excuse my confusion, but this is not related solely to drug matters; it is related to all Commonwealth law.
Mr Bromwich : That is perfectly correct.
CHAIR: I think the Law Council's submission was that in a range of cases there would be different standards where there were offences that offended both state and federal law.
Mr Bromwich : There are only really two major crossover areas. There is a third crossover area, which I hope will never be realised, if an act of terrorism is successful, which will inevitably involve state offences of murder and so on. But the two crossover areas are drugs and child sexual offences, the crossover between contact offending and pornography on the one hand, which is state, and on the other hand the federal offences of accessing, transmitting, grooming and procuring. There is not a lot of crossover everywhere else as a practical matter. The way in which we deal with that is that I and all of my state and territory colleagues have arrangements between us across delegations and so on that all works very well. We are all on very good terms. It has not proven to be a problem; I do not believe it would be in this area either.
Senator JACINTA COLLINS: I would like to ask about the review of the Anti-Money Laundering and Counter-Terrorism Financing Act. Is that on foot? Where is it up to? When is it likely to conclude?
Mr Coles : The review is on foot. It is a review that was required under the AML/CTF Act. I think it is section 251, but I can correct that later if I am wrong about that. It is a review that is being conducted by the Attorney-General's Department in very close cooperation with AUSTRAC. There is no set time for the report to be delivered, although we expect that about midyear would be the time that it may be finalised.
Senator JACINTA COLLINS: Why are we proceeding with these measures ahead of that review?
CHAIR: If I could add to the question: it was put to us by several witnesses that these are rather broad and substantial amendments to that act, and the question was raised why aren't they being dealt with in this review rather than introducing it at this stage.
Mr Coles : I am going to defer to my colleague from AUSTRAC Mr Heard, but I think at a higher level the answer to that question is that this is an amendment that addresses a pressing operational need identified by AUSTRAC that is affecting its day-to-day ability to do its job.
Senator JACINTA COLLINS: Could we have more information on that pressing day-to-day need?
Mr Heard : AUSTRAC has two compulsory notice powers, and the question before the committee is the provision in section 169 of the Anti-Money Laundering and Counter-Terrorism Financing Act, which restricts the admissibility in evidence of material produced under the first of those, which is section 167. The other compulsory notice power is section 202, and the use of material obtained under that power is controlled by section 205. The general intent of the amendment is to align the permitted use of material obtained under a 167 notice with the permitted use of material obtained under a section 202 notice. At present, there is an anomaly between the two. Section 202 can be used to obtain extensive information relating to transactions undertaken by a business that is regulated by AUSTRAC, which are known as reporting entities. However, section 167 can be used to obtain information that relates to the entity's compliance with mandatory requirements under the anti-money laundering and counter-terrorism financing regime.
I can give a real-life case example to illustrate how the anomaly arises. I am very constrained. I cannot say who it is. I can describe the issue in general, but it is the subject of ongoing police investigation. I will not go into too much detail. There was a large reporting entity. Intelligence and transaction information suggested that there was a considerable amount of illicit funds being transacted through this reporting entity. The clear difficulty for AUSTRAC was that it suggested that the reporting entity's anti-money laundering and counter-terrorism financing programs, policies, procedures and practices were deficient and were failing to detect and deal with this apparent illicit activity.
The scale of the activity suggested that there may be a considerable problem there. AUSTRAC utilised a section 202 notice to obtain further information about the transactions that were regarded as suspicious. But the real questions from the regulatory perspective were what were the entity's internal systems, what was their staff training, why was it that they were failing to detect this sort of activity and why were they failing to deal with it? In order to find out those matters, we really needed to ask the entity to provide further documents and to answer questions. The only feasible method to do that was to issue a 167 notice. However, the restrictions that exist in section 169 prevent that material from being used in any civil proceedings under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Therefore, AUSTRAC had identified this anomaly that exists between the two notices. It presents a day-to-day impediment to our supervision and regulatory activities. Therefore, we sought amendment to bring the usability of the material of the two notices into line.
Senator JACINTA COLLINS: This is an issue that is more pressing than the remainder of the issues under the review? Is that your submission?
Mr Heard : Yes. It presents ongoing daily impediments. The inadmissibility of material obtained under section 167 was a factor in AUSTRAC's decision not to pursue civil penalty proceedings against that entity, which otherwise may well have been the decision.
Senator JACINTA COLLINS: The Parliamentary Joint Committee on Human Rights has sought further information about the issue around self-incrimination in the AUSTRAC provisions. Has the minister responded to that committee yet?
Mr Coles : No.
Senator JACINTA COLLINS: Are you able in any way to address those matters for this committee?
Mr Coles : My understanding of the Parliamentary Joint Committee on Human Rights' report is that the main issue goes to that issue of proportionality.
Senator JACINTA COLLINS: I think you are here we had the Human Rights Commission here as well. The president's concern was that the necessary and proportionate issue had not been addressed in respect to the provisions of this bill.
Mr Coles : Yes. I do not have anything further to add onto that in addition to what Mr Heard has just said.
Senator JACINTA COLLINS: The minister will be presumably responding to the committee. We may have an opportunity to weigh that response, along with Mr Heard's evidence at that time. There is nothing further you want to add?
Mr Coles : No.
Senator JACINTA COLLINS: Mr Heard, nothing further?
Mr Heard : Not on any matters of policy and proportionality.
Senator JACINTA COLLINS: I will go to the mandatory sentencing issue. The previous government introduced legislation back in 2012 that would have increased the maximum penalty for firearms trafficking to life imprisonment, which would have brought that up to the same as the maximum penalty for drug trafficking. Has the government rejected that approach?
Ms Smith : I cannot give you advice on that. All I know is that the view of government is that the introduction of mandatory minimum sentences of five years for trafficking offences is the policy that they have asked us to take forward.
Senator JACINTA COLLINS: The government's proposal contains a watered-down penalty of 10 years. Can you offer us any explanation for why that proposal was moving forward?
Ms Smith : The only proposal in this bill to do with firearms, from my understanding, is the five-year mandatory minimum.
Senator JACINTA COLLINS: That is this bill in particular—
Ms Smith : Yes.
Senator JACINTA COLLINS: but I am talking about the broader mandatory sentencing issue. You cannot assist me there?
Ms Smith : No.
Senator JACINTA COLLINS: Does the bill propose to specify nonparole periods for offenders, and what is the effect of this?
Ms Smith : No, it does not. The effect is that it is still the discretion of the judge to determine the nonparole period. The effect of these provisions, if they passed, was to have a mandatory minimum sentence. However, a judge can issue whatever nonparole period they choose in relation to that offence, so anything from zero to the five years. That will be based, I assume, on the independence of the judiciary in the case in front of them. They can determine the nonparole period.
Senator JACINTA COLLINS: We had a discussion with the Human Rights Commission earlier, but I am interested as to whether the department has any evidence that mandatory sentencing works as a deterrent.
Ms Smith : I do not have any particular evidence in front of me. I am happy to take that one on notice. It is certainly the view, from what we have considered in developing this policy, that it is a strong deterrent against the illegal trafficking of firearms. It is a very serious concern to us—the amount of illegal or illicit firearms that are in Australia at the moment—so we are looking at ways to manage that. I am more than happy to take whether we have any particular evidence on notice.
Senator JACINTA COLLINS: It is not my understanding that the department developed this policy. My understanding is consistent with what you said earlier, which is that the government determined that this policy should move forward, so the department's role is moving forward what the government has determined.
Ms Smith : What I say about developing policy is that when we are instructed on something, or when we come up with the idea, we develop it and look at it and take all that—
Senator JACINTA COLLINS: No, I understand.
Ms Smith : That was the language I was using. It was related to my own performance, yes.
Senator JACINTA COLLINS: Is it not the case that the Attorney-General's Department has, in the past, said that mandatory sentences may create an incentive for a defendant to fight charges even where there is little merit in doing so?
Ms Smith : I am not aware of that particular evidence and in what context that was given, so I cannot comment.
Senator JACINTA COLLINS: All right. I might have to give you the context and you can respond on notice to that.
Ms Smith : Certainly.
Senator JACINTA COLLINS: Police have asserted that mandatory sentencing has the effect of limiting their capacity to enter into plea bargains with offenders and thereby inhibits the ability of law enforcement to combat criminal networks. What response would you have to that assertion?
Ms Smith : In my discussions with my team in taking this forward, in consultations that they have undertaken, there is strong support within law enforcement for stronger laws in relation to dealing with firearms due to the size of the illicit market and the concerns they have.
Senator JACINTA COLLINS: Stronger laws can be, for instance, what the previous government had proposed, which is maximum penalties. It does not have to be minimum penalties.
CHAIR: I think you are getting into questions—
Senator JACINTA COLLINS: Policy discussion—that is right.
CHAIR: Ms Smith may not be able to answer.
Senator JACINTA COLLINS: No. More what I am asking I suppose, since this committee last considered this issue, is: what if anything has changed?
Ms Smith : I am not aware of any particular activity that has changed. I am very much aware that the view has not changed that—
Senator JACINTA COLLINS: The government's view has not.
Ms Smith : the illicit firearms market is of major concern.
Senator JACINTA COLLINS: Sure. Are you aware of the evidence that the Human Rights Commission gave us with respect to what has occurred in Canada?
Ms Smith : I am aware of that, and I am aware of that case, yes.
Senator JACINTA COLLINS: That would be an example of what I would say is what, in the overall policy consideration in this area, has changed. The Canadian example, I think, is one example which if anything lends the other way rather than supporting the provisions that the government is keen to progress here. I think that concludes my questions.
Senator WRIGHT: I have a lot of questions that I want to follow up about 'knowingly concerned' and mandatory sentencing provisions but, given the time constraints, I think I will have to leave those. I want to go to the schedule 9 amendments, because they have not really been canvassed yet. I will start by questioning the Attorney-General's Department. There have certainly been concerns raised, through written submissions, not only about the potential impact on the progression of uniform criminal law in Australia but also the concerns of many state DPPs relating to the proposed new information sharing arrangements contained in schedule 9 of the bill. I am interested in knowing what consultations the department conducted with state and territory departments and prosecutors when developing this aspect of the bill.
Ms Smith : In relation to those provisions, we consulted the Commonwealth Director of Public Prosecutions.
Senator WRIGHT: I asked about state and territory departments and prosecutors. Was there any consultation with them?
Ms Smith : This issue has been ongoing for a very long time. In fact, some of our state and territory counterparts have raised concerns with us about their inability to pass us information because of their own legislation. I have not consulted them specifically on these provisions, but certainly the advice that we have had from our state and territory counterparts in dealing with correction services is that their laws are often an impediment to sharing information with us when we are trying to make a decision on a parole order. Quite often, as you may appreciate, federal offenders may also have a state offence, and, because of particular privacy laws, we have not been able to receive information about that. As a result, in making decisions on parole—which the Attorney-General does or the delegated officers within the criminal justice division do— often we have not been able to have all of the information that is available to the states. The idea is that they can pass this information over to us so that the approaches to parole orders will be consistent.
Senator WRIGHT: I guess it goes to what safeguards there are in terms of the protection of personal privacy, and, bearing in mind the rationale for the changes, what other safeguards there are and whether they are adequate. Both the Victorian DPP and the New South Wales DPP have made submissions raising concerns about the new information-sharing provisions. These relate to personal privacy and claims of legal professional privilege. The New South Wales DPP has suggested that, instead of the changes proposed by schedule 9, each request for information should be considered on its merits and the form and content of the information should be negotiable. What is your response to that proposal?
Ms Smith : I would agree with that. In fact, the law is, as always, a guide in this context. The idea is that every case will be considered on its merits. As you would appreciate, every federal offender has a completely different case to each other. Often the kind of information that we are after may be medical information—psychiatric reports et cetera—and it would be important for us to seek that information. But that is not just a blanket approach that we have; for other offenders, we are more interested in finding out the nature of their offence, the nature of the parole that they are actually considering and suchlike. Certainly, privacy is paramount in any of our dealings with our state and territory counterparts, so, without doubt, we do consider every case on its merits. With regard to the idea that a notice may be issued and may override legal professional privilege, we would consider that an order would only ever be issued where it has been put to us that, under the provisions ,it is not possible to pass information over. In those cases it would be very unlikely that legal professional privileged information would need to be provided, unless of course there is a case where a prisoner themselves has concerns about their legal practitioner and they want that information passed over to us. Every case would be considered on its merits.
Senator WRIGHT: Have you read the submission from the Victorian DPP and the New South Wales DPP in relation to schedule 9 of the bill?
Ms Smith : I certainly have read those submissions—not today but in the last week or so.
Senator WRIGHT: I think it is fair to say that they raise concerns about whether the changes contain sufficient safeguards to protect personal privacy and legal professional privilege. Would you agree that they raise those concerns?
Ms Smith : I do indeed agree that they raise those concerns, but I am satisfied that the bill as drafted does provide necessary protections and that, in the end, these decisions are about giving natural justice to offenders and ensuring that the decision makers have all of the necessary information in front of them so that there is no detriment to any of the decisions of parole boards in the case of the states or in the case of the Attorney-General's Department in making a decision.
Senator WRIGHT: Thank you. In the interests of time, although I have other questions I would like to ask, I think I will have to leave it there.
CHAIR: Thanks, Senator Wright. Of course, any questions on notice can be lodged with the relevant people. There is only one additional question from me. It is not really relevant to this bill, but there was a direction from the then Attorney-General, because people-smuggling offenders being caught were just the very low-order crew and not the organisers, not to charge people with the aggravated offence if they were lower order people. That direction, we later heard, had just recently been changed. Is that correct?
Ms Smith : It had been revoked. I think it was in February 2014.
Mr Bromwich : In March 2014 it was revoked.
CHAIR: Can you just remind us of the reason announced by the minister or the government at the time that that was revoked.
Mr Bromwich : I do not recall with precision. The requirement under section 8 of the DPP Act is that the Attorney has to consult before making a direction—that is, before either the original direction, which was made by Attorney-General Roxon, or the direction revoking the prior direction, made by Senator Brandis. Of course, when it was made, I was not director, so that was a consultation with my predecessor. We were consulted in relation to the revocation. I cannot recall specifically what was said publicly, but I can say, as a practical matter, that there are very few people-smuggling cases now. I do not know the exact number, but we have something like a dozen left. Any charges that were already on either preceded the original direction or have been put on in the presence of the existing direction. In other words, it has made no material difference. The revocation has not changed anything.
CHAIR: Is that ministerial direction normal? It is not unique?
Mr Bromwich : There have been about eight directions made in the just-over-30-year history of the office of the Director of Public Prosecutions federally, so it is a pretty rare event. One of those was in relation to the office or the director appearing at Senate committees, so it was of that nature. There was another one in relation to dealings between the office and the then Australian Securities Commission. There was one last year, which was in relation to journalists and the new offence provisions there. So they are relatively rare beasts.
CHAIR: It is probably not relevant, due to the fact that it has been revoked, but it just seemed to me that, rather than giving a direction to the DPP, which seems an odd way to do it, it would have been better to amend the law to say that lesser people should not be charged with the aggravated offence.
Mr Bromwich : The direction had within it a set of criteria, which means that it did not mean that a crew member could never be charged; it just set up some criteria for the application of the aggravated offence. The direction is on our website.
CHAIR: It is not directly relevant to this act; it was just a matter of curiosity. Just to confirm for me, nothing in this act is retrospective, is it?
Mr Coles : No.
CHAIR: I think that is about all.
Senator JACINTA COLLINS: There is one issue I failed to address earlier, with Mr Bromwich. I think you mentioned earlier that you had not been asked to comment on the minimum mandatory-sentencing aspect. I notice that was absent in your submission to us.
CHAIR: I think I should disallow the question—from the atmospherics I picked up when this was raised with Mr Bromwich, before!
Mr Bromwich : It is ultimately an area, very much, of government policy. This particular mandatory minimum is of a different character to that which applied to the people smuggling, because it is not a mandatory minimum of a non-parole period. That is a very material difference.
CHAIR: In the previous one, it did involve mandatory—
Mr Bromwich : As a mandatory sentence, both as a head sentence and non-parole period.
Senator JACINTA COLLINS: But not in psychoactive drugs one.
Mr Bromwich : I do not recall, one way or the other, on that, but I do not think so.
Senator JACINTA COLLINS: That is the one that has been reproduced here.
Mr Bromwich : The firearms one, though, is only as to a head sentence.
CHAIR: Is only—
Mr Bromwich : As to the head sentence—it is still provisional for a variable non-parole period.
CHAIR: In the instance of the lay case, which we are talking about, had that person been convicted—this is hypothetical—the non-parole period could have been set at one day, technically.
Senator JACINTA COLLINS: It makes the law an ass!
Mr Bromwich : It could be, but there are obviously laws surrounding those sorts of things. There is no norm, at least federally, for non-parole periods. There used to be a form of a norm, which operated around the 60 per cent figure, but the High Court—very firmly—did away with that in Hili v Jones. So there is no fixed proportion, and there is a degree of variation around the country as to the ratio of the non-parole period to the head sentence.
CHAIR: Thank you, very much. I think we asked all the questions we said we were going to. As Senator Collins raised earlier, if there are elements of some of the submissions that have captured the committee's attention that you think require further comment, we would appreciate that.
Mr Bromwich : We were asked to provide some examples. They will need to be somewhat vanilla—
Senator JACINTA COLLINS: That is fine.
Mr Bromwich : in their nature, but I am aware of half a dozen examples that might assist.
Senator JACINTA COLLINS: That would be good.
Mr Bromwich : They will not capture the area I referred to—which is where I have had to consider and occasionally provide consent to conspiracy, because that has been the only way of being able to address the area. I am uncomfortable about that, I have to say, but you do deal with what you have.
CHAIR: Thank you, very much. That has been very useful and very helpful to the committee. I appreciate your attendance. I adjourn the proceedings of this committee until we meet to consider the final report.
Resolved that these proceedings be published.
Committee adjourned at 13:08