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Wednesday, 5 April 2000
Page: 15309

Mr MURPHY (5:17 PM) —The Jurisdiction of Courts Legislation Amendment Bill 2000 proposes four disparate administrative amendments to federal legislation. These amendments are: (1) cross-vesting legislation between the Commonwealth, states and territories of Australia in schedule 1; (2) restrictions of access to administrative law remedies in criminal matters in schedule 2; (3) clarifications to the role of the Commonwealth Director of Public Prosecutions and amendments to the powers of the Commonwealth Director of Public Prosecutions, particularly the right for the DPP to institute appeals under state laws; and (4) mandatory sentencing laws.

I turn first to the issue of the bill's impact on cross-vesting legislation. I acknowledge the excellent summary of this legislation contained in the explanatory memorandum on this bill, circulated by authority of the Attorney-General, the Hon. Daryl Williams. Schedule 1 of this bill deals with the various impacts of the High Court's decision in R v. Wakim, ex parte McNally (1999) HCA 27. In Wakim's case, the court decided that chapter III of the Constitution precludes the conferral of state jurisdiction on federal courts. Schedule 1 of the bill repeals the relevant provisions of Commonwealth laws that consent to the conferral of state jurisdiction on federal courts. Schedule 1 also confers federal jurisdiction on federal courts to review the decisions of Commonwealth officers and bodies made in the performance of functions conferred on them by specified state and territory laws.

Prior to the Wakim case, federal courts exercised state jurisdiction to review these decisions. Wakim makes invalid state jurisdiction of review decisions. The decision is regrettable because the cross-vesting scheme was a plausible and working regime, but the decision has compelled this government's intervention. Wakim has no effect on the conferral by territories of jurisdiction on federal courts. However, for the purpose of achieving uniform coverage of decisions of Commonwealth officers the bill treats the territories and states in the same way. The reverse is also true—the bill enables the supreme courts of the states and territories to exercise federal judicial review jurisdiction in limited circumstances. These amendments cannot be opposed as they are technical in nature and will remove from Commonwealth legislation those provisions that depend on the validity of the exercise of state jurisdiction by federal jurisdiction.

However, while cleaning up the Commonwealth laws, the bill does nothing to address the fundamental problems which have arisen as a result of the decision in Wakim. Moreover, the anticipated decision in the case of Hughes, which deals with the issues of constitutional aspects of the Corporations Law cooperative scheme, is likely to create additional problems. I will not elaborate on the implications of this on Australia's reputation as an internationally acclaimed centre for legal administration. In short, I note that the effect of Wakim is to make our judicial system less efficient. While the Attorney-General is on record as saying that a referendum would probably be required to properly fix the breakdown of the cross-vesting system, he has been advised that it would be hard to justify a referendum on cross-vesting, partly because of cost considerations.

The alternative, which is presently under discussion, is for each of the states to provide an equivalence in their respective legislation to the powers held by the Commonwealth to legislate to provide the Federal Court with jurisdiction over corporations matters. While it may be possible to address some of the problems by such a reference of powers, the only long-term solution is for constitutional amendments. This is because a referral of powers by the states under section 51(xxxvii) of the Constitution could be withdrawn and it would not allow the Commonwealth to circumvent the High Court's interpretation of chapter III of the Constitution, upon which the separation of judicial power from legislative and executive power is based. The government is reluctant to suggest a referendum because of the poor history of prior attempts to alter our Constitution. However, one method of engaging the community in the need for constitutional reform is to submit easily understood and practical changes which will be better received by the community.

It is submitted that a second reading amendment be moved to highlight the government's necessity to address this jurisdictional anomaly which has been flagged by our courts. I say again that the only long-term solution is for constitutional change; however, this constitutional change will challenge the powers of the states and territories and, for this reason, may come up against considerable opposition from the states and territories.

I therefore join the shadow Attorney-General, the Hon. Robert McClelland, in supporting his second reading amendment as follows: whilst not declining to give the bill a second reading, the House (a) notes the consequences of the decision of the High Court of Australia in re Wakim; (b) recognises that the Commonwealth has a leadership role in consultation with the states and territories to achieve a long-term solution to the problems created by the decision; (c) calls on the government to urgently obtain an appropriate referral of power from each of the states and territories to ensure that the Corporations Law is based on a valid exercise of Commonwealth power; and (d) calls on the government to give serious consideration to holding a constitutional referendum in conjunction with the next federal election to permanently address the underlying problems created by the decision in re Wakim, to restore the cross-vesting scheme and to deliver cheaper, more efficient justice to Australians.

I turn now to the second provision of this bill with respect to the review of decisions in the criminal justice process—schedule 2. Schedule 2 contains amendments to the Administrative Decisions (Judicial Review) Act 1977—the AD(JR) Act—the Corporations Act 1989 and the Judiciary Act 1903. These amendments restrict the access of defendants in criminal matters to administrative law remedies. This part of the bill is aimed at preventing the use of delaying tactics in the criminal justice process by removing the collateral access of defendants in federal criminal matters to federal administrative law procedures and remedies. The bill prevents defendants in criminal matters from using the AD(JR) Act to challenge administrative decisions taken during the criminal justice process, such as the issuing of search or interception warrants and the making of a decision to prosecute.

The resolution of administrative review proceedings initiated by defendants in criminal matters often causes delays to the main criminal action, which must be stayed while the administrative proceedings are completed. In the time it takes to do this, witnesses can disappear and evidence can be lost. The Constitution gives a right to administrative review of decisions of Commonwealth officers in the original jurisdiction of the High Court. This right cannot be displaced by legislation; however, proceedings may be remitted to another court exercising federal jurisdiction for hearing and determination. Under section 39B of the Judiciary Act, applications for administrative review of a decision to prosecute made by a Commonwealth officer are currently determined by the Federal Court. The bill amends section 39B of the Judiciary Act with the effect that, where the prosecution is commenced in a state or territory court, the state or territory court will have jurisdiction to hear such applications for administrative review. The bill also amends the Corporations Law so that applications for judicial review of administrative decisions connected with prosecutions under the Corporations Law are treated in the same way as applications for judicial review by defendants in other Commonwealth criminal matters.

While any restriction of rights available to accused persons is a matter for concern, it is submitted that these amendments should be supported, with two exceptions that I will address shortly. Parties will continue to have access to administrative review in the original jurisdiction of the High Court that is guaranteed under the Constitution. If parties wish to commence proceedings relying on the original administrative review jurisdiction, these matters will be remitted to the Supreme Court of the same state in which the substantive criminal proceedings are taking place, rather than the Federal Court located in another state or territory. This is more efficient and less likely to lead to extensive delays which may jeopardise the fair resolution of the substantive criminal action. The reasoning for the amendments is as follows. The amendments will impact more significantly upon well-resourced defendants. The amend-ments are expected to impact primarily upon defendants in drug matters where evidence is obtained by telecommunications interception warrant, and corporate fraud where, for example, there is involvement by the Commonwealth Director of Public Prosecutions—for example, the Alan Bond case. Other parties do not have the substantial financial resources required to carry on lengthy proceedings in the Federal Court challenging administrative action associated with the prosecution.

The real protection for accused persons lies in the criminal justice system itself rather than in administrative law proceedings, where the prosecution is required to prove its case beyond reasonable doubt—a much higher standard than the civil standard applicable to administrative action—and trial judges have considerable discretion to rule as inadmissible any evidence which has been obtained improperly by law enforcement authorities. This protection will remain, and it is the most appropriate mechanism by which evidence which is brought to the trial by law enforcement agencies is scrutinised and dealt with. In considering the admissibility of evidence, the trial judge is best equipped to consider whether any administrative deficiencies in the collection of evidence are mere technicalities rather than a substantial infringement of the rights of the accused. I note that evidence, even if improperly obtained, is still admissible in certain circumstances, and this is needed at times with the very difficult task that is entailed in the collection of evidence by law enforcement agencies.

The opposition notes two areas of concern. Firstly, the amendments are expressed to apply retrospectively to AD(JR) Act proceedings that have already been commenced. It is submitted that it is inappropriate that parliament legislate to prevent the hearing of any matters which are already before the court. While it is appropriate on occasion for legislation to have retrospective effect, justice requires that persons who have already commenced proceedings be entitled to have those matters heard on the merits. It is also arguable that parliamentary termination of proceedings already on foot may offend against the separation of powers. It is submitted that, for this reason, new section 9A inserted by item 1 of schedule 2 should be amended by adding at the conclusion of the section the words `except any application commenced prior to the date of commencement of this section' and new paragraph (x) of schedule 1 be amended by adding the words `in respect of which an application under this Act has been made prior to the date of commencement of this section'.

Secondly, the amendments provide that administrative decisions connected with the criminal justice process may not be heard while a prosecution is on foot. Prior to a prosecution being commenced, parties may still commence proceedings seeking AD(JR) Act review of related administrative decisions. However, the amendments provide that the Federal Court has no jurisdiction to continue to hear such applications once a prosecution has been commenced. I believe this may be unduly harsh on those persons who have commenced applications for administrative review prior to the initiation of a prosecution. Instead, the Crown should be able to apply to the court for a stay in proceedings on the basis that matters the subject of the application are more appropriately dealt with in the substantive criminal proceedings, and that a stay of proceedings will not be substantially prejudicial to the applicant. Accordingly, new part 9A inserted by item 1 of schedule 2 should be amended by adding at the beginning of the subsection the words `Subject to subparagraph 9A(M)' and inserting new subsection (1A) and (1B) as follows:

(1A) Subsection 9A(1) does not apply where an applicant has commenced an application under this Act prior to the commencement of a prosecution for an offence against the law of the Commonwealth, a State or a Territory.

(1B) Where subsection 9A(1A) applies, the Crown may apply to the court for a permanent stay in proceedings in the hearing and determination of the application and the court may grant such a stay if the court determines that:

(a) the matters the subject of the application are more appropriately dealt with in the criminal justice process; and

(b) a stay of proceedings will not substantially prejudice the applicant.

I turn now to the third element of the bill—that is, clarifying the power of the Commonwealth DPP. This bill restores what had been understood to be the situation before the High Court's decision in the case of Bond v. the Queen of 9 March 2000. The High Court decided that the appeal brought by an officer of the DPP to the Western Australian Court of Criminal Appeal against the sentence imposed on Mr Alan Bond for breaches of the WA companies code was not authorised. Under this bill, the DPP will be authorised to institute or carry on an appeal relating to a prosecution for an offence against the law of a state or territory that is conferred on the DPP under a state or territory law. The amendments will also expressly allow the right of appeal in cases where the DPP has, with appropriate authorisation, conducted the prosecution. I am pleased that the opposition raised with the government the matter of the loophole created by the High Court for the government to urgently introduce amendments to the DPP Act 1983 to close the loophole exploited by Alan Bond.

I want it noted on the record that the decision of the High Court in Bond has severely shocked the sensibilities of public morality. I cannot understand how the High Court could ignore public policy considerations in a situation of such high public profile as the Bond case—a matter where so many people's lives were ruined—and that the court could not find it in itself to permit the appeal, forcing the issue back on this parliament. Again, I find myself struggling with the role of the judicature in this instance in its clear misleading of public morality by choosing to hide behind the thin veil of legality in permitting Alan Bond to walk free, when we all feel in our hearts that he has not repaid his debt to society for the estimated $1.2 billion in losses he incurred. It is outrageous.

Can the High Court really believe that justice was served in its decision? Can it really rely on interpretational law to derive justice from its assessment of the situation? There is no justification for its decision. The necessity for this House to rescue the situation with one-off legislation is repugnant to the core, as the High Court cowers away in allowing another big fish to swim away. Skase is still free and now so is Bond, living a life of luxury that few of us will ever see and holding more money than even fewer of us will ever see. How can this be so? Because we as a culture, including our illustrious courts, have permitted this thoroughly unethical behaviour of mere legality to veil our vision to wilful blindness to what justice demanded. It is time the High Court and all courts made a conspicuous and deliberate commitment to ethical determinations. The public is disgusted with the Bond decision, it is disgusted with the High Court and the judiciary, and I obviously feel the same way.

I turn to the fourth area of this bill: mandatory sentencing. Over the past three days in this House, we have heard considerable speeches from the Prime Minister and others about mandatory sentencing. We have also been privy to substantial media coverage on this issue. My only additional comment on this issue is about the use of international instruments in the formulation and direction of government policy. I am outraged with the unethical nature of this government in its selective use of international instruments depending on the policy subject matter. In particular, this government has repeatedly demonstrated that it will pull in and push out the application of international instruments to which Australia is a signatory whenever it suits it. It has done so with international instruments concerning the environment and the Multilateral Agreement on Investment. They are just two examples.

On the issue of mandatory sentencing, the Howard government has snubbed suggestions that the mandatory sentencing provisions are not consistent with Australia's international obligations. The Prime Minister cannot have his cake and eat it too. He cannot choose to ignore his international obligations on some issues, then rely on international obligations on others. I call upon the Prime Minister to declare once and for all his government's position on the use of, and policy towards, international instruments. He cannot simply push and pull in his unpredictable ways. How many times have we heard the Prime Minister threaten to use international instruments to achieve one end, then ignore them to achieve another? It is time the Prime Minister came clean on this issue. As I have said, I call on him to declare the government's position as to what reliance it will place on the use of international instruments, in particular the relationship among international instruments, the original jurisdiction of our parliament and courts, the sovereignty of Australia and the source from which our positive law flows. At the moment, the government is all over the place. This schizophrenic approach to policy making is both dangerous and deeply disturbing for the future zeal of our Commonwealth.

On a personal note, I am uncomfortable with these amendments in general. My discomfort lies in the reliance on the procedural nature of these amendments in seeking to redress excesses and abuses of constitutionally administrative rights. The nature of administrative review is a function of the executive. It is the executive that is acting within its powers of review of the court process. This is clearly what is meant by `judicial review'. At the risk of making too technical a point on this matter, let us review what is really happening. First, we have a constitutional guarantee of rights of administrative appeal. Those rights are currently being trammelled by capricious litigants who, as I have previously noted, are typically well-resourced litigants, usually with a profile in drug related and Corporations Law related criminal offences. Second, all four segments of this bill relate to profound amendments to our federal criminal jurisdiction through its relationship to administrative remedies flowing from the judicial review powers of the executive.

Why have these amendments been so necessary? We have one case in Wakim, we have another solitary case in Bond and we have one or two species of criminal actions in drugs and Corporations Law which are being used to justify the very foundations of our jurisprudential relationships. Have we reached the point in this legislature where the executive is so driven by statutory imperatives and so directed by the legislature that statute alone directs what is a proper use of administrative review power and what is not? I do not believe that our legislative forefathers ever contemplated that administrative procedures guaranteed in the Constitution would be abused in this way. Moreover, I cannot believe that our forefathers would have ever foreseen the day when this government was reduced to making procedural amendments to thwart the operation of procedural fairness. It is no remedy to simply divest administrative review to the states and territories either. Will this not just transfer the problem to the lower courts—the supreme courts of the states and territories?

I hold the view that we must in turn flag the issue of judicial review and administrative review for closer examination so that we as a legislature do not become enmeshed in a game of cat and mouse with litigators who are too clever by half. These litigators conspire to abuse the noble rules of procedural fairness, natural justice and the rule of law in ways that wreak havoc on our courts. But the equally irresponsible approach will be to react to such wrongs by making the exception the rule. I clearly have in mind the Skase amendments to Australian taxation laws as I say this. It is appeasing to our souls, but it does not add to the jurisprudential weight of a well-measured and balanced administrative system. Rather, it is a symptom of government reacting retrospectively to individual cases rather than looking at the totality of the administrative system. If we persist on this administrative path, we run the risk of being an administrative system of exceptions and of marginalised and particular cases rather than a law based system on the jurisprudential principles of universalism, natural law and paramount ethics founded on our common law, the Roman law and ecclesiastical heritage. (Time expired)