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Tuesday, 15 February 2000
Page: 13457


Mr KERR (4:58 PM) —The opposition supports this legislation, which repeals and replaces section 2.2(2) of the Criminal Code Act 1995. Whilst we support this legislation, we do see it as a matter of some regret that the delays occasioned since this government came to office have necessitated this particular piece of legislation. The intent of codifying the criminal law was announced by the Hawke government and pursued by the Keating administration, in which I was Minister for Justice. In fact, I introduced the legislation that this particular amendment deals with in early 1995.

Chapter 2 of that criminal code was intended to provide a uniform expression of how the principles of criminal law might be expressed consistently across not only the Commonwealth but all states and territories. Under subsection 2.2(2), this chapter comes into force as of 15 March 2000. So the framework, if you can imagine it, is that we had discussed the general benefit that could come from a national system of criminal laws, or at least a substantial uniformity in relation to criminal law, in the late 1980s and early 1990s. We introduced the Criminal Code Act in order to provide a framework from which the Commonwealth itself would conform all its legislation, and around which we had the hope and expectation that the states and territories would also respond in a positive way in order that we could have a similar system of criminal law applying right across the states and territories.

Again by way of background, presently even the most fundamental of principles of the criminal law diverge substantially between various states and territories, most noticeably between those jurisdictions that are still common law jurisdictions and those that have adopted various forms of what was originally the Griffith Criminal Code. Similar codes exist, of course, in Tasmania and in other jurisdictions. So, the way in which criminal responsibility is sheeted home in criminal law varies very substantially between various jurisdictions, and it is a matter of considerable confusion to practitioners and, indeed, to those who are subject to it.

When the Criminal Code Act was passed in 1995, it was estimated that it would take approximately five years for the Attorney-General's Department to achieve harmonisation across all Commonwealth legislation of Commonwealth offences, in line with the principles set out in chapter 2 of the criminal code. I think that was a fair time period to allow for that exercise to be conducted. Five years would have been more than adequate had sufficient haste been pressed upon those responsible for the task to have made certain that the legislation ensuring that all Commonwealth legislation was brought into line with these new principles of Commonwealth responsibility, at least at the Commonwealth level, was achieved.

It should also have been an opportunity for substantial advocacy of the benefits of this approach to the states and territories. This has not been the case since the new government came to office. Whilst the process has continued, the opportunity to press their state and territory colleagues on the advantages of moving in harmony with the Commonwealth to develop a common approach has not been particularly well argued or advanced. With the Commonwealth dragging its heels and failing to put much effort into the encouragement of states and territories to come into line, we still have, five years on, the same wretched morass of different principles and inelegantly expressed conflicts that emerge when conflict of law situations arise with respect to the criminal law, and where we, for example, still find ourselves with very difficult questions of jurisdiction arising in relation to conspiracy mattersthe question of whether the Commonwealth law allows for the evolution of new crimes of conspiracy with extraterritorial impact and the likestill emerging as live issues in our jurisprudence.

The department has advised the government that the process of aligning Commonwealth law has taken longer than anticipated and that it will not be completed by 15 March this year. Therefore, if chapter 2 comes into force as of 15 March this year, it would create practical difficulties. You would have a Commonwealth statute that expresses the principles by which the Commonwealth will operate with respect to all Commonwealth criminal offences not standing neatly with a number of provisions in particular acts that still criminalise specific conduct. That plainly would give rise to the potential for argument about the validity of one provision or the other, and it would certainly create a potential minefield for prosecutions under the offences which had not been harmonised.

So this legislation extends the application date for subsection 2.2(2) to 15 December of next year. Senator Vanstone's office has asked us to facilitate the swift passage of this legislation so that the amendments can be enforced before 15 March, when we would otherwise have had this situation of the improved general provisionswhich have now been the subject of extensive consultationwhich have been passed and included within Commonwealth legislation for a long period of time, but still with these inconsistencies around the margins remaining. We are certainly happy to accommodate that. Happy is probably the wrong word, but this is an example of the way in which the government and the opposition can work together to facilitate the swift passage of legislation when necessary.

We are responsive to the minister's request to assist with a piece of administrative legislation which is necessary to prevent widespread negative implications in the way in which Commonwealth criminal justice legislation and the system operate. It would be churlish for us to say to the government, `Although we are critical of the pace at which you have progressed this, we are going to punish the good administration of justice by creating unnecessary complexities in the administration of criminal law.' That would be a most unsound position for us to take. We are willing and, indeed, quite pleased to support this piece of legislation, in the circumstances. I think it is important to emphasise the words `in the circumstances' because we need to go back to the fundamental reason why the criminal law revision process was undertaken and begun in the late 1980s, continued through the work of the Criminal Law Officers Committee, and then implemented in legislation.

There were two important pieces of national law reform which ought to have moved in parallel. One was to get harmonisation of our criminal lawsat least the basic principles under which criminal law operates, reserving the possibility for particular responses to local circumstances in various states and territories where they might require a particular measure to address a wrong. At the same time, there are certain fundamental questions. For example: at what age can a person be held liable for an act and be prosecuted? How are questions of insanity to be assessed and judged? What mental element is required for the commission of a crime? Is knowledge a necessary element? Is recklessness sufficient? Can mere negligence suffice as the requisite mental state? We felt it was inappropriate that such vital and fundamental bedrock questions about the way in which the criminal law can be expressed can vary so greatly from jurisdiction to jurisdiction. We believed that it was important to achieve a national approach in relation to those very fundamental questions. We still believe it is important; indeed, the government believes it is important. It is just that the government is not doing anything to translate that belief into sufficient urgency, orI think more fundamentallyto encourage the states and the territories to proceed with that sense of urgency themselves. If at the end of the day it is only the Commonwealth that enacts this approach, the complexities will be even more unhelpful than they currently are, because you will have the code states, you will the Commonwealth states, and you will have the criminal code provisionswhich are intended to be model provisionsoperating at a Commonwealth level alone and exclusively.

The second of the major initiatives that were proposed was reform of the evidence law. I had the privilege of introducing model legislationwhich was intended to operate not only at the Commonwealth level but also at state levelin relation to the admission of evidence in curial proceedings. That has had greater application outside the Commonwealth than the codification of the criminal law. There the Commonwealth has enacted its own legislation which now applies nationally in relation to all Commonwealth matters. That model framework has been adopted and applied in New South Wales and in the ACT. So, in a very large part of Australia, those laws are the basis of common approaches.

Of course, nothing has been added to the achievement that was left to this government when it came to office. No new state has been encouraged to join the scheme of application of the Evidence Act, and there has been no great enthusiasm from the Attorney-General, the Minister for Justice and Customs, or the Prime Ministernotwith-standing the advantages in the administration of the courts and the convenience for the citizen of having common rules apply in these matters which no longer respect state boundaries. There is no real reason why the method of proof in relation to some particular fact should vary between New South Wales and Victoria. It seems that lawyers now can practise as if there is a national market, in most ways. We are certainly trying to encourage that, but there are still basic differences in the operation of the evidence laws, both in the civil and criminal aspects, between major jurisdictions. And that imposes substantial and unnecessary transaction costs on the legal process.

That is not to say that any model law that is introduced in this way is going to be without its critics or not capable of improvement. It should mean that we encourage a process whereby the states work with the Commonwealth, as they do in a number of areas where we have adopted a national approach. The model legislation becomes a template so that all the states and territories get together to see whether or not a particular criticism of a provision is warranted. If they agree, it is changed and it applies right across the country. That is what should happen with the Evidence Act, and that is what should now be under substantial discussion about the criminal code. Remember that the provisions about criminal responsibility in the criminal code that we are passing into legislation in this parliamentand passed into legislation five years agohave been built on year by year.

I note there will be a debate in this parliament on provisions in relation to fraud and offences of that nature, and we will be discussing the draft that will be included in the Commonwealth legislation. These building blocks of national law-making have involved the states and territories right from the start. The Criminal Law Officers Committee was never an emanation of the Commonwealth; it was an emanation of the Standing Committee of Attorneys-General. It has been involved in very extensive consultations with the states, the territories and the legal profession and has provided the parliaments with very well thought through drafts in which the reasons for particular directions have been set out and clearly identified and the reasons why some measures have not been supported have been identified, thereby allowing the states and the Commonwealth to have a very clear picture of how to substantially improve the administration of justice.

It is a travesty and a shame that a project of this significance has been given so little priority. I appreciate that, in the toing-and-froing of daily political life, other issues assume importance for the week or the month or the year, and they must be pursued with the urgency that I expect to be accorded to them, but a long-term project of as great a national significance as this will get nowhere unless it is given energy from the leadership of this government—from the Attorney-General, from the Minister for Justice and Customs and indeed from the Prime Minister. It was the urging of the Prime Minister, at the head of government level, which first kicked off this process, and there was a cooperative working through of it by the attorneys and their law officers. Without there being some political imperative, all that good work is likely to be treated simply as an interesting academic exercise, and the long-term national cost will be extreme. It is not something that we will be able to look back on in 15 or so years and say, `This was work which amounted to a substantial achievement,' if all we have, as a result of this enormous endeavour by so many people with great goodwill, is a substantial pile of reports but no adoption, or no commitment to the adoption, of a national scheme by the states and territories and further foot dragging by the Commonwealth in relation to the legislation that it has introduced and passed for its own use.

We indicate that we are happy in the circumstances to support this legislation, but those circumstances are most unfortunate. We believe that the momentum for the criminal code project needs to be revitalised. I welcome the discussion paper on chapter 4, `damage and computer offences' and on chapter 2, `jurisdiction'. They are very important developments. I note that the chapter on theft, fraud, bribery and related offences was introduced last November. When those provisions are enacted by this parliament, it will allow us to see a schema of laws which will enable the Commonwealth to say to the states, `We have moved past just legislating general principles of criminal responsibility. You can now see how this applies to the range of offences which are more akin to those which are expressed in your state legislation.' On that basis, there should be an opportunity to gain some greater agreement between Commonwealth and state attorneys on a time frame whereby we will move towards harmonisation on the basis of this model criminal code.

The task is one which never excites great media interestit is not one which you can get on the front page of a tabloid newspaperbut it is a waste of human resources and it is a lost opportunity. To place Australia in the position it could be in, if we worked this thing through properly so that there was harmonisation of our approach on evidence and criminal law, would be of enormous benefit to a public that is concerned about law and order at a very simple level and concerned to make certain that we have a legal framework which is responsive and adequate to deal with the prosecution of crime. It would also address an economic advantage that would flow from having common principles whereby lawyers could, with confidence, advise their clients about admissibility of evidence notwithstanding which jurisdiction they practised in. It would enable decisions as to whether or not an action might be in breach of some prohibition of the criminal law to be assessed again without any regard to the jurisdictional issues. All of these advantages would flow from a serious recommitment to this national project.

I appreciate that the government is batting on with thisI would certainly be much more critical had it abandoned this national projectbut it does seem to me that we are not much better off by a continuation of a program of work which is not now geared to see a positive outcomeby way of pressure, encouragement, enthusiasm and advocacywith the states and territories. It really is important to go back to that fundamental agreement that the Prime Minister and premiers reached years and years ago and to the bedrock agreement that was reached between the Attorneys and their law officers that this was a task of great importance and that we would engage in this in a cooperative and constructive way with the national interest at the front of our minds rather than with the view that we would seek to retain difference and complexity in our laws for the sake of it. It really is a fundamental and important issue of national significance which has been allowed to slip down the agendano doubt under the pressure of a whole range of other issues which have been coming onto the government's agenda and perhaps also because it was the child of the previous Labor administration. I would hate to feel that that was part of the feeling, but there is, I imagine, no small sense that it is better to bat on and get up your own raft of achievements rather than to progress that of a previous administration. I suppose it would be a bit optimistic to expect anything other than that kind of response. But, once we get past that, we ought to realise that there is a national imperative here and really get behind this scheme, get behind the idea that motivated it in the first place and get back to some serious talking about a timetable for its national implementation. I know that the government believes that this issue should not be abandoned and it will continue with itso I am reassured on that scorebut there needs to be far more whole of government commitment to it than has hitherto occurred.

Finally, I look forward to the introduction later in this parliament of the most recent chapters of the model criminal code. They contain very well thought through provisions. There are a couple of specifics, which we will be discussing with the minister and her advisers, where we differsubject to persuasion, and there are some very persuasive advisers. Indeed, they were my advisers at one stageso, extraordinarily persuasive. I do welcome that continuation of the project. It is not, as I say, going to be an issue that will catch the imagination of the tabloid media—it might not catch the imagination of any of the media—but it ought to catch the imagination of the media that we have passed the five-year period without this coming into effect because of delay. That is essentially what has happened. We have not been able to meet benchmarks we setI do not think unreasonablyin order to bring about the harmonisation of Commonwealth provisions in relation to criminal law responsibility, let alone to provide a sufficiently advanced model to the states and territories to encourage them to be more than interested spectators in this process.

Both with this legislation and with the Evidence Act there is a need for fresh urgency and fresh attention to the task. I indicate that the opposition will continue to be as constructive as we can be through this process. Naturally, you can expect us to be critical of aspects with which we do not find ourselves in agreement and to press the government to become more urgent and more committed to the task. But the opposition will not be opposing this particular legislation. We understand that the government will be moving as rapidly as it can to complete the task. Hopefully it can do so before that now extended time line. Of course, if it is able to do that so much the better.