Mr MURPHY (5:11 PM) —The Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 is yet another example of the legal split personality that has plagued our common law legal system since earliest times. On the one hand, we are a common law country. We are collectively bound by common law precedent, at least by courts with sufficient standing. This bill is of interest to me for two reasons: firstly, I am a member of the House of Representatives Standing Committee on Legal and Constitutional Affairs; secondly, I am particularly interested in the operation of criminal law as it relates to section 29D of the Crimes Act—that is, the offence of defrauding the Commonwealth. I say this at a time of questions I am pursuing with the Attorney-General and the Minister for Immigration and Multicultural Affairs in relation to former Senator Malcolm Arthur Colston, and I still have questions Nos 1817, 1925, 1958 and 1957 on the Notice Paper, unanswered.

This bill makes substantial changes to criminal fraud and, for reasons that I will outline later, demonstrates the torn loyalties of a legal system struggling to come to grips with its identity. I am speaking about the defence of public morality and the restoration of public confidence in the criminal code. The Colston affair stands as a classic example of how public confidence is shattered by the application of a lethal cocktail of amending a criminal code whilst not accommodating the impacts of these changes on pre-existing procedural law, such as the Commonwealth government's prosecution policy. Here, the Commonwealth Director of Public Prosecutions actually commenced criminal proceedings on a pre-existing law—namely, section 29D of the Crimes Act—for an alleged breach of defrauding the Commonwealth. Behind this charge is a long line of common law precedents. Further, there is a complex and delicately balanced range of criminal practice policies, which is an admixture of statute, common law and policy of which the prosecution policy is one part.

The more questions on notice I have asked in relation to former Senator Malcolm Arthur Colston, the more it has become apparent to me how critical the role of common law and policy is in the overall efficacy of maintaining the honest goods of public confidence and the structural integrity of the criminal justice system. To put it bluntly, the amendments today are only as good as the practice and procedures that surround them. In the last 10 years, we have seen many examples of all but convicted criminals escaping their day in court simply because, at the appropriate time, they become too frail or too crook—no pun intended—to stand trial. We see the situation in Indonesia at present, with former President Suharto now ducking for cover on medical grounds as he attempts to evade the Indonesian Attorney-General's best efforts to bring him to trial. Former President Suharto was simply too ill to stand trial for many alleged crimes. We see former business tycoon Christopher Skase in Majorca jumping into his wheelchair and hooking himself up to his life giving ventilator, unable to return home. What a joke! We see former Chilean dictator Pinochet escaping proceedings for so long because he too is too crook. Whilst it is not for me to adjudicate whether these cases are legitimate or not, what is important is the impact on the legal process itself. The reason why these matters become media events is that there is a higher sense of cynicism that accompanies these actions and, with it, understandably, a complete loss of public confidence.

That higher sense is the competing interests that must be weighed against each other. What are those competing interests? On the one hand, we have the interests of the individual whose individual justice must be upheld, including their dignity. It is not relevant how scurrilous or notorious the allegations are; policy requires that if a person is too ill to stand trial then so be it. On the other hand, it is in the public interest to see that justice is done and manifestly seen to be done. Public confidence must be established so that, whether in Indonesia, Chile, Australia, Majorca or elsewhere, when wrongs are committed the wrongdoer should stand trial. This is particularly the case against the United Nations, now under considerable pressure with Slobodan Milosevic, who stands accused of crimes against humanity but who cannot be brought to the court in The Hague. I would be prepared to lay a wager that Slobodan Milosevic's low profile at the moment is related to a sudden incurable illness and his desire to find a doctor who is prepared to make an appropriate diagnosis of alleged war crimes.

The point is that this legislation must reflect the true aspirations of the people. It is insufficient that a person is allowed to walk free when the public interest is so grossly mauled. It is my submission that, when the offences are grave enough and the repercussions of repeat offences are sufficiently high, the public interest must prevail over an individual's interest where that public interest strikes at the very heart of confidence in the criminal justice system. The public view politicians cynically because we are seen as rorters of the system; we profit from our so-called scandalous behaviour whilst the battling Australian must face the music. We witnessed it today in question time with Minister Reith and also during the matter of public importance debate. It is this public confidence that we must restore. It is for this reason that a comprehensive review of the legislation is so important—in its totality and not just a few clever redefinitions of criminal law that embed true justice into the criminal code.

So what is today's bill all about? This is a bill that is considered so complex that it was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs. The committee made five recommendations, and the government has accepted four of those recommendations. The bill is also the product of over 10 years of work by the Attorney-General's committee, the Model Criminal Code Officers Committee, MCCOC. The `split personality' to which I referred at the start of this speech is the torn loyalties of the legal fraternity to recognise the forgotten fact that we are an English tradition common law country. This point is explicitly recognised in the Bills Digest when citing Sir Samuel Griffith in his codification of the Queensland Criminal Code in 1897. However, the common law means that our criminal and civil codes are not static. Unlike civil law jurisdictions of mainland Europe or Sharia law jurisdictions in certain Muslim countries, the laws being passed today will certainly drift with the passing of time. This bill is a general attempt to spring-clean the law. This is a periodic ritual of Australian and other common law countries; that is, the law drifts along as the courts continue to interpret the law and make judgments therefrom. The result is that, over time, the law becomes so unwieldy that the question of house cleaning must be contemplated and implemented. The presentation of this bill as a codification is therefore misplaced. True, the bill clarifies existing criminal offences and invents some new offences, notably the offence of `general dishonesty' and the new offence of `obtaining financial advantage'.

The bill is interesting for a number of reasons. First, the general new category of offences under proposed division 135 establishes four new offences under the `general dishonesty' provision. Second, the new offence of `obtaining financial advantage' was not contemplated by the MCCOC but is included here. Third, clarification of existing section 83 of the Crimes Act—`organised fraud'—was opposed by the MCCOC but accepted by the government. The point being made here today is that this government has clearly demonstrated in the inclusion, exclusion and modification of the existing criminal code that it is making its own mind up in the ratification of the type of criminal code that will govern Australia. I say `Australia', because the purpose of the model criminal code is to ratify a uniform criminal code that will apply throughout all the jurisdictions of Australia. This is problematic, of course, for the common law jurisdictional reasons I have mentioned; that is, in time each jurisdiction will deviate according to the particular cases brought before the courts. Also, cultural and other factors will play their part in ensuring that in the future the so-called uniform laws promulgated today will bear little resemblance to the uniformity attempted today.

I will briefly refer to other jurisdiction provisions in the bill. This government, by this bill, is rightly asserting its input to the existing legal system. I may say that the recommendations of the MCCOC reflect the aspirations of the judicature, represented by the highest legal officers in the land. They have made their five recommendations after an exhaustive review of the current legal system. This, of course, reflects the embodiment of the law as they know it. Their recommendations reflect the pre-existing common and statutory laws and policies, notably the Commonwealth's prosecution policy and other relevant instruments. I bring this to the House's attention because the government is clearly within its powers to develop a criminal code that reflects the public morality as understood by the collective will of its members. The point is that we have undertaken to express our will to codify a law that cannot be truly codified. The reason for this is simple: we are not a civil law country. As sure as I am standing here today, in the near future this bill, once absorbed into the criminal laws of our land, will be tested in the courts. In short, the law will change and, with it, the implied morality of that law will also reflect society. This is a good thing. This is a major reason our common law heritage has served us so well in assisting in the maintenance of separation and independence of the judiciary as well as ensuring a high level of stability in judicial decision making. This brings me back to the split personality of what is being attempted here. The Bills Digest apologises for this by stating:

In all forms of communication in our everyday lives we hear people say `it appears'. It seems that nothing ever is—it appears. I like the word `appear'. The law is replete with laws that `appear' the same but are in fact different. I cite just one example by analogy: the right of silence and the privilege against self-incrimination are in fact different evidentiary rules. They appear the same to the untrained ear. They may even look the same, depending on how and when they are used in a court. But the fact is that they remain utterly distinct procedural and evidentiary rules in the courts. The reason for this distinction is that they are founded on utterly different policy rationales. This is important because the judicial officer presiding must adjudicate the competing policies that very often conflict in his or her court and weigh the policy consequences of one policy defeating or having priority over another policy. This is one major reason we spend an enormous amount of money on our criminal and civil justice system. Decisions adjudicating which policy is to prevail are delicate, and only a judge or other judicial officer with considerable experience can weigh the consequences of such decisions. I mention this because the Bills Digest alerts us to the gist of this bill when it says that the bill:

Let us examine this statement in more detail. The Bills Digest does certainly achieve the very objects of this bill that I fear the most. The Bills Digest explicitly states that the objectives in consideration of this bill are (1) reduction and (2) standardisation. These two words are the war cries of the day in our contemporary morality. The reductionist tendencies of this government are seen to achieve a list mentality; that is, there is a tendency to reduce law by simplification. Simplifying the law sounds like a good idea. It may appeal to Australians who may form an opinion that the law is too complex and therefore in need of so-called simplification. In fact, bills such as this fall foul of gaps, from which the term `gap analysis' is coined. Gap analysis looks at the before and after of legislation.

The purpose of such analysis is to identify what has been retained and what has been lost in legislation. In this case the law has been reduced by joining existing offences that appear to be similar. Let each member of this House ask themselves this question: `If these pre-existing statutory laws are so similar, why are they different?' I put to this House that these laws are different because they are founded on different policy rationales. In turn, these policy rationales are founded on different moralities—that is, different rules of social conduct.

What is criminal law anyway? In the English common law tradition a criminal law serves two purposes: one, it is a public expression of minimum code of conduct by a person subject to its jurisdiction; and, two, it prescribes punitive punishment for those who violate the law. Therefore, when a criminal law changes it is really altering the social contract that exists between the person and the state. I am tempted to refer to `the person' as `the citizen', but even this word `citizen' is no longer appropriate to this bill, because the law has made substantial amendments to the operational jurisdiction of this bill that extend beyond Australian citizens. There are now four categories of geographic jurisdiction, which include extraterritorial geographic jurisdiction and operational jurisdiction.

The government is therefore presenting a bill that continues a liberal tradition that plagued English common law jurisdictions even before the time of Sir Samuel Griffith. Liberalism has plagued even the drafting of statutory law by relying on its own tradition whilst criticising other traditions in the name of `efficiency' and `comprehensibility', `consistency' and `certainty'. I have taken these words from Hawkland's `Uniform Commercial Code', University of Illinios Law Forum 1962. I cite this quote because it typifies the jurisprudential thinking that has plagued bills like this one we are debating here tonight.

The legislature is obsessed with simplicity. What it ignores—or intentionally strives to erase—is the pre-existing policies and ethics that underpin the good governance of our criminal justice system. I am particularly concerned about the use of terminology which recommends—as Sir Samuel Griffith states in his `Explanatory Letter to the Attorney-General Queensland with Draft Code', written in 1897—`criminal law ... should be reduced to writing in such a form that any intelligent person able to read can ascertain what it is.'

I am not concerned with the laudable aspirations of one of our great legal forefathers in seeking that the law be intellectually accessible. However, Sir Samuel Griffith's noble aspiration has been interpreted over time as so-called plain English legal drafting and plain English contracts. This is, of course, not what Sir Samuel intended. He notes the prerequisite of intelligence—that is, possessing an actual knowledge capable of understanding. Our legal system is more complex today than it was in Sir Samuel Griffith's time. This is due to a number of factors, including technology and changing pluralistic cultural effects and globalisation of international law. In 100 years time the law will be even more complex. There is no avoiding it. It is both foolish and dangerous to write legislation in a way that appears to be written in clear and plain English. Legal practitioners will admit that there is no such thing as plain English legislation or contracts. Every instrument requires careful interpretation, extensive background knowledge of fact and law and a trained intellect to interpret this information.

The bill we are debating tonight is part of a liberal ideology that believes that codification is the answer. Codification is appealing in the liberalist ideology because it is empirical in its nature. The bill attempts to codify laws in black-and-white, good, bottom-line law that anyone can understand. Who can admit that criminal law will be easier or more consistent or more certain than the existing law? I do not believe this to be the case. The law is necessary to do justice. Justice can be both tedious and complicated, especially in criminal law.

I am not advocating complexity in law for its own sake. I would wish a law to be simple, so that all persons could understand. But not even a lifelong professional like John Laws could understand a law relating to the confidentiality of jurors under oath. Not even a knowledgable man like John Laws, who has a long career in the media, seemed to know a basic rule such as `thou shalt not talk to jurors about a trial'. He pleaded ignorance of the law. If John Laws cannot know a law that he had previously come across at least once in his lifetime, and ought to have known backwards as a professional radio broadcaster, then what hope does the average Australian have to understand laws that they may encounter only once in their lifetime?

The purpose of this bill is to simplify, reduce and clarify. Reductionism is at play in this bill. Its explicit purpose is manifold. First, the bill will erase certain offences. I am confident upon review of the Bills Digest and other supporting documents on the bill that no gap analysis has been performed. This absence of gap analysis may be intentional or unintentional. The legislative draftspeople may even believe that they are acting in a morally responsible way by faithfully following the penultimate philosophy of reductionism and empiricism by simplifying legislation.

However, the truth is that the law is being reduced. The law is being erased. The law is being substituted with new laws. This is not a case of simply combining laws; this is a case of creating entirely new heads of laws. Even those pre-existing laws, such as section 83 of the act, are being turned into something similar but not the same. This raises the issue of legal surrogacy. Legal surrogacy means the substitution of one law for another. It means the actual replacement of an existing law with an entirely new law. It is the difference between a diamond and a zirconium. The zirconium looks like a diamond, but it is not a diamond and never will be a diamond.

The bill before us tonight raises serious concerns for the future of Australian jurisprudence. Clause by clause the enactment of each new provision may or may not be valid. The philosophy that `new means better' is heavily present in this bill. I cannot see any policy rationale behind the purpose of this bill other than the driven objectives of simplification and codification. On the simplification front the bill fails because it has deliberately sought to erase those traditions that are the policy foundations of the pre-existing statutory rules. On the codification criteria the bill fails because the English common law system means that Australian jurisdictions can never be truly codified. Attempts such as this bill are mere points in time to be overrun by the continuum of the common law.

There are the new provisions of the act where so much concern has been raised—that is, the jurisdiction of this bill is extended way beyond the geographic and operational jurisdictions of Australia. This bill now extends beyond territorial and individual jurisdictions. The lex loci, or law of the land, now literally means `law beyond the land'—a contradiction. The lex nuptii, or law of birth, now may be in conflict with other foreign nations' laws, thus raising the possibility of private and public international law jurisdictions being invoked.

I say all this in the context of a bill which has sought to systematically eliminate our traditions and substitute them with new values that are essentially liberal in perspective. The liberalism is found in the view of law itself. What was meant by `fraud' 100 years ago is not the same as that meant by `fraud' today. The Bills Digest makes great play of the complexity of the law and the need to simplify it. This is also the position of the government today. However, the law is necessarily complex for the reasons I have already mentioned.

There is a further tendency to reduce the complexity of law simply by eliminating it. There is one management technique to reduce crime—redefine it. If too many offences are being committed, that is easy: eliminate the act or the thing done as a crime. What was a crime 20 or 50 years ago is not a crime today. Examples include the operation of a disorderly house as a brothel, which is now decriminalised in New South Wales, and the permissible amount of narcotics one may have in one's possession before a charge is mandatory.

In concluding, it would be interesting to question whether former Senator Malcolm Arthur Colston would be guilty of an offence under the new law. It would be even more interesting to see how the procedural rules, such as the prosecution principles, would interact with the substantive law. I wonder whether there would even be a charge laid, let alone whether proceedings would be dropped on the grounds of the medical health of the defendant. The proposed new division 134 is supposed to be the same as the old law. But will it be the same?

Law is like a computer—that is, when it works well, do not tamper with it. There are many amendments to the law here which reflect the philosophy of change for its own sake. These changes are justified on grounds of simplification. In fact new offences are created in a vastly expanded jurisdiction which I can only surmise will have a deleterious effect on the understanding and judicial interpretation of law, governed by the whims of the public morality of the day, while severing the traditional links of pre-existing common law precedent. (Time expired)