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Thursday, 13 October 2005
Page: 38

Mr RUDDOCK (Attorney-General) (11:55 AM) —I thank the honourable members for Gellibrand, Hughes and Banks for their contribution to this debate on the Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005. I thank the member for Hughes for her supportive comments about the measure. I note that the member for Gellibrand has moved an amendment. I will deal with all of the points that she has raised except No. 5. Obviously, the government does not accept the amendment. In dealing with the member for Banks’s observations, I will treat them in the context of the broader arguments that were made in the amendment put by and the speech made by the member for Gellibrand because they covered some of the same area.

Firstly, the amendment, in my view, is premature. It is based upon assumptions that are contained in its numbered paragraphs, which form a premature view as to the way in which the bill would operate. I think she herself pointed out that these were all matters that will be considered by the Senate Legal and Constitutional Legislation Committee. I would prefer to await the outcome of that process before jumping to wild conclusions. The first matter that she raised was the claim that the member for Banks has not pressed: that the bill is retrospective. It is not the case that it is retrospective. The provisions in this bill are procedural and they apply to proceedings that are to take place after the provisions come into force, thus they do not affect the substantive rights of either party.

As for the points of principle made by the member for Banks, I do not demur in relation to criminal matters as to what the burden of proof should be, nor do I want to see proceedings that are unfair to the parties involved. But that does not mean that the ways in which those issues are dealt with have to be precisely the same. I will deal with the issues relating to different tests of admissibility that apply to the prosecution and defence, because it is correct that the tests are different. However, to imply that different tests necessarily mean that one party is disadvantaged over another is not, in my view, a safe assumption. I notice that, in commenting about the observations of Mr Ian Harrison, whom I know well and whom I respect, while he may have offered substantive arguments the quotes that were given were really an opinion without outlining the basis upon which that opinion was reached.

The question, in my view, should not be whether the tests are different but whether the tests that have been set for the prosecution and the defence are fair and appropriate. That is the issue that I want to deal with. Both the defence and prosecution may make an application for a witness to give evidence by video link. If the prosecution makes the application, the court must allow the witness to give evidence by video link unless to do so would have a substantial adverse affect on the right of the defendant in proceedings to receive a fair hearing. While the tests differ slightly for the prosecution and for defendant applications, both allow scope for the rights of the defendant to be taken into account. It would not be practicable to make the test for the defendant’s applications analogous to those that the prosecution has to meet. That test of course would be that if the defendant makes the application the court must allow the witness to give evidence by video link unless to do so would have a substantial adverse affect on the right of the prosecution in proceedings to have a fair hearing. In my view, those words would make no sense because the prosecution does not get a right as such to a fair hearing in the same way that you expect a defendant should.

The test needs to be different, and the interests of justice test for the defendant applications is an appropriate and flexible test that will give the court the capacity to protect the interests of the defendant. It will also allow the interests of the prosecution to be taken into account. The test for the prosecution applications is more narrowly focused on protecting the defendant’s interests, as in that situation there is no need for the court to second-guess what is in the interests of the prosecution.

That is essentially the gist of the argument that we make. If in some way we have failed to do that adequately and it comes through the committee process, I will look at it. I am not churlish about these things. If a bill can be improved, I am quite prepared to look at amendments, provided they do not derogate from my aspiration to ensure that evidence that is available—and ought to be available but cannot be obtained because somebody is not free to travel to Australia—would not be denied. I do not think the Australian community would want people who are charged with serious offences in relation to terrorism to be able to get off on the basis that you put in place procedural blocks for evidence that might significantly impact on the question of whether or not a person is guilty.

The member for Gellibrand also notes that the provisions are inconsistent with other measures in separate enactments. There are differences, but why does a difference somehow imply a weakness or error? The differences are deliberate, carefully crafted to accommodate the objectives of this bill. For example, the main difference is in the test that applies when the prosecution adduces video link evidence. The test is intentionally different because the bill is designed to facilitate the admission of video link evidence in terrorist cases. It is not designed to be a general law dealing with video link evidence.

The fourth point that was made by the member for Gellibrand is that the definition of ‘observer’ is too loose. The provisions are flexible, and that was deliberately so to ensure that the court would have the power to control its proceedings and to determine whether it was first necessary for an independent observer to be present—for example, if the representatives of both the defence and the prosecution were present in the place where the video link was given. These are matters that we think the judge, in ensuring that the trial is conducted fairly, should be able to address and make appropriate rulings on. So it was left not vague but flexible in order to give the judge control over those proceedings.

Point 5 was related to whether the courts would ‘face practical or legal obstacles to the enforcement of contempt and perjury laws in cases where evidence is received from a foreign country’. There may be issues in relation to those questions, but I think the broader purpose of being able to get access to the evidence is important, and the efficacy of that is a matter that will be determined in the trial. Whether or not you would be able to use proceedings in relation to contempt and perjury when somebody is not within your jurisdiction obviously demonstrates that you cannot necessarily address those issues, but it should not be a technical defence to enable a person to avoid responsibility for their actions, particularly where terrorist acts have occurred. The fact that those remedies are not available to you may be a matter that the judge, in considering the weight that is put on some of these matters, may want to take into account, but again I think that is really a matter for the judge.

Finally, there was a serious question raised as to whether coverage of the bill is adequate. The point I would make is that the government have brought forward amendments which are specifically targeted and designed to give the courts flexibility in managing trials for serious terrorism offences. If there are issues raised as to whether or not we have put in place sufficiently flexible measures, my argument would be that we have and that we have left the matter within the capacity of the courts to deal with.

I think it is important in the context of the amendment and the bill that we do not lose sight of what we are about here. This bill is to ensure that the laws that we have put in place to target terrorist activity are able to be enforced. Experience has shown that, to successfully prosecute a terrorist, it will often be necessary to rely on evidence from witnesses overseas who are unable to travel. I think the member for Banks brought out some of the reasons why they might be unable to travel. Sometimes people in these situations may be known to a person who has been charged here, and they are not going to be free to travel here. Yet the evidence might well be of a great deal of importance in securing a successful prosecution. This bill will ensure that, wherever possible in terrorism cases, important evidence from overseas witnesses can be put before the court using video link technology. If evidence cannot be given by video link because the laws of other countries do not allow it, the bill will ensure that the witness’s testimony can be put before the court using alternative means—for instance, by way of a written transcript or a videotape.

New video link and foreign evidence rules are balanced with appropriate safeguards. Video link evidence and foreign evidence cannot be adduced if it would compromise the defendant’s right to a fair trial. An independent observer can be required to be present at a place where the video link is being given to safeguard against any impropriety in the giving of that evidence. In all cases, the normal rules of evidence and the protection provided by those rules will continue to apply. The bill makes a number of other important changes to the criminal law enforcement legislation.

In conclusion, I am particularly keen to see this bill enacted. I have not commented on litigation that is afoot—I do not think it is appropriate for me as Attorney to do so—but it is quite clear that there are people who have been charged with serious terrorism offences where legislation of this sort could well be relevant to ensuring that the trials can be properly conducted. I hope the Senate Legal and Constitutional Committee will keep in mind in its consideration the urgent need for this legislation and, hopefully, when we return in early November, the Senate will agree that the bill in its present form should be given passage.

The DEPUTY SPEAKER (Hon. BK Bishop)—The original question was that this bill be now read a second time. To this the honourable member for Gellibrand has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.