Senator BARTLETT (Leader of the Australian Democrats) (8:01 PM) —The Democrats oppose schedule 5 in the following terms:

I spoke to this briefly in the second reading stage. I sorry if I am a little bit late but the minister's second reading contribution was a bit shorter than I anticipated. This schedule in the bill, as I said in my second reading contribution, deals with what the government said is Criminal Code harmonisation. That means introducing strict liability for a particular offence. The Democrats believe that strict liability in this case is too harsh. The issue relates to spouse visas in particular and a person being required to clearly demonstrate no guilt in relation to the offence. The issue for the Democrats is not that we think people should be able to get away with misrepresenting the situation in relation to spousal relationships. Our issue is that we believe strict liability is too harsh and that the default element of recklessness is better than strict liability. We feel that it would put potentially innocent people or people who in most respects are naive or gullible in a situation of being in a lot more trouble than they should be.

It is an area where it is notoriously difficult to prove genuineness in relationships, not just in migration law but in other areas as well. It does present difficulties for enforcement officers but I think in this case it is basically just a matter of strict liability being too harsh. I expressed similar views about two years ago or whenever it was that the Senate committee looked into this matter and I believe that it is still the case. I think in parts—and I am just trying to make sure that I am addressing the right issue; it is certainly in relation to strict liability, which is a component anyway of this schedule—strict liability is something that we believe is too harsh across the board for the people that it may apply to. We think it is too low a threshold for the prosecutor or too high a threshold for the defendant, at least in the areas detailed in this schedule anyway. We do not believe that it is appropriate and therefore we are opposing schedule 5.