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Thursday, 24 March 1994
Page: 2272


Senator VANSTONE (6.10 p.m.) —Hopefully someone is giving me one of those running sheets as well. I came in here slightly more speedily than I expected, and I am not even sure whether the running sheet that is prepared now is the same as the one I was given the other day. I would like to make a couple of preliminary remarks about the conduct of this bill, and the good and bad things that we can see by the way different bills are handled. As most senators will know, this bill was sent off to the Senate Committee on Legal and Constitutional Affairs. A number of people, expert in their field, were invited to come and give evidence as to their views on the bill and what amendments ought to be made.

  I do not know if in the first instance the Democrats spotted what I think was—hopefully we will be able to say was—one of the key problems with the bill. It was not clear that they spotted it when it went through the Legislative Scrutiny Standing Committee on the Scrutiny of Bills, and we did not spot it. I do not know whether the government even thought it was a problem. I refer to the changes to the law in relation to accused persons taking part in identification parades. Through some negotiations the government has agreed to ditch its proposed changes in that respect and maintain the existing common law position.

  The process of having the bill looked at in committee and enabling people to raise a variety of concerns and to focus on the consequences, and to argue out in places other than this chamber the benefits or otherwise of the proposed changes, was a very beneficial one. It was beneficial because initially the government said, `Okay. This might be a bit rough if a jury can draw a negative inference because of someone's refusal to participate in an identification parade other than for good reason. We understand that'. I do not say that the government said that willingly, but in the end it did say that. In the end it said, `We will give someone legal advice. We will make sure they have got a lawyer there', to which I would say—and I think the Democrats would agree—`A fat lot of use that is'. All that does is allow someone to spell out in clear terms to someone else what jeopardy they would be in if they did not participate in this parade.

  So what was seen to be a solution was no solution at all. Having a lawyer there would mean that the lawyer would just tell a person what the law was, and the law was that that person would be in deep trouble. It was, in effect, going to be an attack, albeit a small one, on the principle that an innocent person can sit there and do nothing. The person would not be found guilty because the Crown will not be able to get enough evidence against that person. That principle really means that a person should not have to do things, if they are innocent, to maintain their liberty. But if a negative inference is allowed to be drawn from a person's refusal to participate in an identification parade, that person would be tempted—foolish one would say, if that person looked like other suspects—not to participate in that parade if a negative inference could be drawn because the person had done so.

  We understand the arguments about the Crown needing the most reliable identification. All of that follows. The point being made by a number of people, and supported by us, is that one cannot always approach these things from the point of view of the difficulty in proving guilt. Every now and then for the sake of sanity one has to say, `What about the arguments that one is innocent until proven guilty? What can we do to maintain that situation?'.

  In this instance, I believe that if an inference is drawn that one is not participating for other than a good reason, that is an attack on one's right as an innocent citizen to do nothing and fear nothing. There could be arguments as to what is `a good reason'. Some of the witnesses before the committee said, `Well, you might think a good reason is that you didn't look too flash'. A person might have had a hard night out and not gone home and shaved—I am assuming that crooks are men; the statistics might support that, as more often than not they are. If one looked dishevelled and was wearing dirty clothes, one might think that one's appearance would carry with it the look of a suspicious character. At the time that might be thought of as a good enough reason to refuse to participate. But, someone else—a jury or a judge; whoever decided whether it was a good enough reason—might think that person was just shifty and wanted to go home and spruce up his appearance.

  If someone who is a thug and a crook—and looks like a thug and a crook—is caught bashing up someone in a back street, and then appears in court in a suit, shirt and tie and with neatly cut hair and a clean shaven face, people will often say it is a ruse to make him appear other than what he is—namely, a thug and a crook.

  That simple example of, `I don't want to participate because I don't look too flash' might be perfectly reasonable to some people and a bit suspicious to others. I am very pleased that the government will not proceed in the way it originally intended and has agreed that on that matter at least the common law, as it now stands, should apply. I trust that that is the effect of the amendment and that what we want to achieve is achieved. I hope there is not some technical stuff-up. I suppose that is something the government would now say it is pleased about, but we wonder why it did not take that approach in the first place and why it thought providing a solicitor was any help. All that a solicitor could do would be to point out the jeopardy in which one would find oneself by not participating.

  Even if nothing else in the bill is changed—although other things will be—that change alone is reason enough to justify the efforts that we put in when we sent these bills off to the committee. I must say that the discussions held were most amicable. Even if it that change were the only one achieved, we would be very happy—but there is more.

  As a consequence of a suggestion of mine, I am bold enough to say, the government is going to move an amendment. It is only small, and most people would look at it and say, `Who gives a tuppence ha'penny damn about that. That will not affect me'. I do not know which number the amendment is, but it is the one that ensures that when property that has been seized comes up for a reassessment about whether the Crown can still keep it, more attempts will now be made than would otherwise have been the case to notify the owners of the property that there will be some sort of hearing as to whether their property can remain seized.

  When talking about criminality it is easy to think about guns or cars or whatever, but these days one might be talking about expensive computer equipment which was seized because it had been lent to someone and was in that person's house. It may have had nothing to do with any alleged criminal activity, but one may not be able to get that computer equipment back. It seems only fair that one should be notified of an opportunity to claim that the Crown should no longer keep the property, whatever it is, and that one should be able to get it back. I am very pleased that the government has agreed to make that change.

  There are some other changes that the government is making as a consequence of the committee hearing. I am pleased about them as well. There are some more that the Australian Democrats want to make, but which we will not support. That does not mean that, in spirit, there is anything wrong with anything the Democrats want to do. But in the end, on balance it comes down to whether it is an effective way to proceed and whether, in proceeding in that way, they actually achieve something other than making everybody feel better by walking away and saying, `We have changed the legislation here and there'. I am not sure that some of the Democrats' amendments would be very effective in the way they affect people on the ground on a day-to-day basis. I do not believe a case has been adequately made out.

  With respect to some other amendments with which we also have sympathy, it is a case of saying, `We are talking here about legislation that relates to Commonwealth offences which will primarily be investigated by federal police, but sometimes by state police as well'. The question of what is the law in each of the states comes to mind because there are state police officers who will have to operate with respect to both. The consequences for state governments of changing this need to be borne in mind. We believe in a cooperative federal system, and some of the recommendations contained in the Democrats' amendments may well happen in the end by way of the Attorneys-General getting together and deciding to proceed down that path.

  I make those preliminary remarks to let it be known how pleased we are about those two particular changes. The first change is very important. The second change is perhaps not so important, but we would all think that unless they were our goods that had been seized, we wanted them back and had not been given the opportunity to participate. We are very pleased about the committee process and the way in which it has operated. We are in sympathy with many of the Democrats' amendments but we, nonetheless, believe they are not going to achieve what they want to achieve or are too onerous. In the end, those changes will come about through a cooperative arrangement with the states.