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Wednesday, 24 August 1994
Page: 251


Senator VANSTONE (5.02 p.m.) —In discussing the Crimes and Other Legislation Amendment Bill 1994 at the second reading stage, there are basically three matters—two in particular—that I want to raise. We have asked for this bill to go to the Senate Standing Committee on Legal and Constitutional Affairs. There are two matters that we want looked at, and they are the ones that I primarily want to talk about. The Scrutiny of Bills Committee rightly identified another problem that the government may care to take up with respect to some amendments to the ASIO Act.

  Basically, this bill is an omnibus bill. I am not sure why it is not called the `Law and Justice Legislation Amendment Bill', since that is the title often attached to these sorts of omnibus bills. In any event, this bill amends 17 acts, mostly in minor, technical or consequential ways.

  I cannot resist mentioning the manner in which we do things and the high cost of lawyers that is passed on to their clients in chasing up these constant, minor, technical amendments—as we call them—which make ourselves feel better. Nonetheless, we are changing the law in different ways and people have to chase those changes. No doubt, this bill will be purchased by people who want it for one reason, and 17 different groups will purchase the whole bill because they want it for one reason.

  We have to constantly turn our mind to that. Maybe one day we will be bright enough to use some sort of technological advance which will allow the amendments to separate bills to be put in electronic form and distributed easily, so people do not have to buy this old-fashioned paper with 17 amendments to 17 bills. Instead, they can simply go and get the details of the one they want.

  I will deal firstly with the one amendment to the ASIO Act that I wanted to raise as a consequence of the Scrutiny of Bills Committee having spotted this. Having served on the Scrutiny of Bills Committee, I should have found it myself. There is an amendment which would allow the Director-General of Security to give a standing authorisation to an officer of ASIO to approve persons to exercise the authority of warrants issued by the Attorney-General.

  We have had consultations with the Director-General. We think it is quite sensible and not a controversial amendment. Simply, there will be occasions when the Director-General is not available to approve persons who are able to exercise authority of warrants. If he is not available it causes difficulty, and there is no reason not to fix that. Except, this is a power that up until now has laid only with the Director-General of Security. All of a sudden, we are prepared to say—simply by not thinking, I suggest—`He can give it to an officer of ASIO, any officer of ASIO.'

  For years, we have had the view that it could only be the Director-General. The intention is that he gives it to a person of a particular category or level but, as a result of what I think is a drafting oversight, it means that he can give it to any officer of ASIO. I am sure that the government did not intend that, and I feel quite confident that it will address that matter. It is just another example, of course, of the Senate scrutiny committee doing its job, picking up faults in legislation on a completely nonpartisan basis, and trying to improve legislation as it goes through them.

  The more substantive area that I wanted to raise relates to the amendment to require a court to take cultural background into account when sentencing federal offenders, and to include cultural background as a consideration when discharging offenders without proceeding to conviction. The amendment will add cultural background to the previous list of character, antecedents, age, means and physical or mental condition of the person.

  This amendment was recommended by the Australian Law Reform Commission in its report, Multiculturalism and the law. My understanding is that by doing this—and the point was raised in the report—one would hope that cultural background is not used, for example, as a justification for violence against women. The Law Reform Commission concluded that we could have confidence in the courts and the manner in which they would take that into account. They do take it into account now through the common law in a number of states, at the very least.

  We do not lack the confidence that the courts will do that properly. Nonetheless, the point was raised. There was sufficient substance in the concern for it to be mentioned. We would like the legal and constitutional affairs committee to tease out those concerns. It may be that the Law Reform Commission may have no basis for its concerns, but I suspect it would not have said something if it did not have some basis for them. It would not hurt for the committee to have a very brief look at that concern.

  If I understand the concern correctly, it is not that cultural background will be taken into account when it is a relevant part of the offence. How could we be concerned at that? Some people want it taken into account in mitigation when the cultural background itself has had nothing at all to do with the offence. The degree to which that would happen might cause some concern. We need a few more informed, knowledgeable minds informing the Senate of how that would operate before we make that change.

  The second matter that we want the Senate Staning Committee on Legal and Constitutional Affairs to deal with relates to other amendments to the Crimes Act in the 20(2A) area. This is to ensure—

. . . that a person is not to be imprisoned for failure, under an order made under subsection 20(1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.

As I understand it, there are two opportunities: one is to have a non-custodial sentence, and the other is to have a custodial sentence that is suspended. This ensures that if an order is made and someone gets out of going to gaol—if that is the appropriate way to phrase it—and they then breach that order, they will not go to gaol for breaching that order but will be able to be dealt with in the same way as they could have been dealt with under the original offence. We are concerned about that.

  If people get the benefit of some kind of positive discretion by the courts in their favour and they have this non-custodial sentence or a custodial sentence that is suspended by the making of an order—and perhaps this only relates to the first part—that then means that they do not go to gaol. In that case why are we saying, `If you breach the order, it doesn't matter; we'll just go back to treating you as though you have started once again at the beginning'—almost start de novo. If people get the benefit of some goodwill from the courts, they have an obligation to comply and ought to be dealt with severely when they do not. Goodwill only goes so far and, if people want to throw it back in someone's face, I think they are inviting the goodwill to end. There is a particular concern, too, about the victims of crime. It does not seem appropriate that, where a person is not imprisoned but has an order made to pay an amount by way of reparation or restitution, they should be able to not pay for whatever reason and, tough luck, just sort of start again. If we misunderstand that, we will be happy to be told we misunderstand it, but I suspect that we do not. We would like that matter looked at by the committee as well. Other than those two matters—which is not to say that we are pre-determined against them but just that we want them looked at—we are supportive of the bill.