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Thursday, 5 February 2009
Page: 577


Ms LEY (1:59 PM) —I rise to speak on the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008. This bill was introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. That bill provides for the criminalisation of cartel conduct, including penalties of up to 10 years imprisonment, and will necessitate the creation of an indictable criminal jurisdiction in the Federal Court for the trial of offences.

Other Commonwealth offences are heard in the state and territory courts. The Federal Court is to be invested with this jurisdiction because of its extensive experience with civil and quasi-criminal cartel cases under the current Trade Practices Act. However, I understand that, where prosecutions involve offences under both the cartel provisions and state or territory law or other Commonwealth offences to which this bill does not apply, state or territory superior courts will be able to hear those matters without the offences being disjoined.

The amendments proposed in this bill provide for the complex procedural framework required by the new jurisdiction, including the form of indictments, entry of pleas, bail, pretrial proceedings, empanelment of juries, conduct of trials, sentencing and appeals. The procedural provisions have been modelled upon existing state and territory provisions and will apply in all Federal Court trials, regardless of where the trial is being conducted. For consistency, in this area of law at least, this is preferable to applying the procedural and evidentiary provisions of the relevant state or territory.

While the criminalisation of serious cartel conduct and the creation of the framework to deal with it have the opposition’s support, we have serious reservations about two aspects of this bill. The first of these concerns the accused’s right to silence. Proposed section 23CF requires an accused who takes issue with a fact, matter or circumstance disclosed in the prosecution’s case to state the basis for doing so. This may compromise an accused’s right to silence. The justification stated in the explanatory memorandum is that this will permit the court to narrow the issues to be dealt with at trial. However, efficiency is not an adequate justification for dispensing with age-old rights, especially such important human rights as the right of an accused to remain silent. Alternatives exist, using the examples from other Australian jurisdictions. A provision such as that applicable in New South Wales could be adopted, which allows such a procedure unless it will cause prejudice to the defence. Alternatively, there should be no adverse consequences flowing from the accused’s nondisclosure, which is the practice in Victoria.

The second issue concerns the presumption in favour of bail, which has also existed under our law since ancient times. The proposed section 58DA provides that, if the court refuses to grant bail, the accused cannot make a subsequent application unless there has been a significant change in circumstances. This is more onerous than the provisions applying in any other Australian jurisdiction. Proposed section 58DB is also silent as to whether there is any presumption in favour of bail. In other jurisdictions there is generally a presumption in favour of bail except in specific circumstances. There is also no provision in this bill for the court to provide reasons for refusing bail.

The right to silence and the presumption in favour of bail are among the individual human rights recognised and protected by our common law for centuries. For a government such as this one, which paints itself as having a human rights focus, it is curious to say the least that its first attempt at a federal criminal jurisdiction would seek to sweep away rights recognised since the Magna Carta.

This bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs on 4 December 2008 for inquiry and report by 20 February 2009. Submissions have been received from, among others, the Attorney-General of New South Wales, the Law Council of Australia, the Law Institute of Victoria and the Criminal Bar Association of Victoria. Some of these submissions have been highly critical of the issues I have described.

The opposition will not deny this bill a second reading in this place. What we will do is await the full report and recommendations of the Senate committee, with the benefit of expert submissions, and seek in the Senate to achieve the appropriate balance in this bill.