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Tuesday, 23 August 1994
Page: 86

Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (6.32 p.m.) —My reading of this amendment is that clause 26A deals with the disclosure of a person's former criminal record if that person is called to give evidence in a criminal matter. Subclause 26A(2) reads:

After being notified under subsection (1), the Commissioner may take any action he or she considers . . . including disclosing to the court, the prosecutor . . . the criminal record of the participant or former participant.

Senator Vanstone is correct that the commissioner has a discretion. That subclause also says that will be applied when `he or she considers appropriate in the circumstances'. The explanatory memorandum in clause 5 provides in part:

If the person is . . . to give evidence for the prosecution, it is intended that the Commissioner shall provide the prosecution, the court, the accused or his/her legal representative . . . a copy of . . . criminal conviction.

I am informed that although there is an apparent inconsistency between the bill and the explanatory memorandum, the bill is in discretionary terms and the explanatory memorandum is in mandatory terms. The use of the mandatory term in the explanatory memorandum is intended to give guidance to the commissioner in the exercise of his or her discretion, under this provision, in one situation where it is intended that the conviction be disclosed. That one situation is the one I mentioned earlier, where there is a real possibility of a gaol term or substantial pecuniary penalties.

  In other circumstances it may not be appropriate for the conviction to be disclosed; that is, where the accused is called as a witness. So there is a broad discretion in the bill but the explanatory memorandum tries to target those more serious offences and suggests in that targeting that the record be disclosed in a mandatory way.