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Thursday, 13 April 2000
Page: 14104


Senator ABETZ (Parliamentary Secretary to the Minister for Defence) (4:36 PM) —I thank honourable senators for their contributions in this debate. Can I make a few comments in relation to the contributions made by individual honourable senators. First of all, to Senator Bolkus: I am sure I did not hear in his remarks even a hint of criticism of the High Court decision! I am sure that was just in my imagination, and I will let that pass. We will undoubtedly engage further in relation to the specific proposals of the opposition, and I will deal with them in some general comments afterwards.

Moving on to Senator Greig, I would invite him: please do not tempt me on the UN committees. I will bite my tongue at this stage and we will move on. In relation to Senator Cooney's contribution, can I thank him for his discourse on judges, both present and former. We did miss out on the Family Court judges. He did not go through those, but I am sure he would have interesting stories to tell about them.

In relation to the Federal Court jurisdiction, I remind Senator Cooney that the costs in the Federal Court, I would imagine, are higher than they are in state criminal courts in the various jurisdictions around the Commonwealth. Basically what he was talking about—the way the criminal trial would be conducted—is exactly the way it happens every single day of the week in every single jurisdiction around Australia for the vast majority of criminal cases that are brought under state law. Can I simply suggest that the costs will increase as of necessity when two jurisdictions are involved. Counsel with experience in Federal Court jurisdiction may have to be engaged as well as a barrister or counsel with criminal court experience. However, the main cost is in the level of representation. Most of the defendants exploiting the Federal Court jurisdiction would engage counsel at the highest level, where ultimately avoiding a prison term or getting out of the proceedings is their main goal.

I also mention two other matters that Senator Greig raised. He suggested that there would be retrospective application in the criminal jurisdiction. That is wrong. Schedule 2 is not retrospective. We would assert that the amendments have effect from the date of its commencement on proceedings which are on foot at that time and on proceedings begun after its commencement. The fact that some proceedings affected by the bill may have commenced before the bill came into effect does not make the bill retrospective.

In relation to the comments on the NCA and legal aid, amendments of the National Crime Authority Act 1984 made by items 70 and 71 of the bill do not remove an existing entitlement to Commonwealth legal aid. They preserve the status quo in relation to Commonwealth assistance. The Commonwealth NCA Act provides for witnesses giving evidence under that act to seek review in the Federal Court of decisions of the NCA. The bill applies this element of the Commonwealth act to witnesses giving evidence under state NCA acts. This is done because the state acts cannot confer jurisdiction on the Federal Court following re Wakim.

The Commonwealth NCA act also provides for witnesses giving evidence under the Commonwealth act to seek legal and financial assistance. The state NCA acts do not provide for such assistance. In making technical changes to preserve existing Federal Court jurisdiction, the bill will not create new rights to Commonwealth assistance to cover witnesses under the state acts. The intergovernmental committee of the NCA has established a working party, including Commonwealth and state representatives, to coordinate reforms of the legislative framework. The Commonwealth will put this issue on the working party's agenda so that it may consider any concerns regarding assistance for witnesses under state legislation. The working party is the appropriate body to pursue this issue.

Can I make some general comments. I think all sides of the chamber have acknowledged that this legislation is necessary. Some problems have arisen as a result of the High Court's decision in reWakim and Bond and we need to address them. That is what the bill seeks to do—to overcome some of these problems. It is important to ensure that the Federal Court remains the principal forum for review of Commonwealth offices and authorities performing functions under the cooperative schemes affected by the bill. It is important to ensure that the Commonwealth DPP is able to play the role that was envisaged under cooperative schemes and that the criminal justice process is given every chance to operate fairly and effectively. White collar criminals with deep pockets should not be allowed to take advantage of opportunities to exploit the legal system in ways which reduce the fairness of that system.

I should point out that at a recent conference on the reforms of criminal trial procedure the Hon. Justice Mark Weinberg, a judge of the Federal Court, recommended strongly that legislatures act to impose meaningful restrictions on the process of collateral review of investigative functions. The bill implements essential remedial action required to address the real difficulties resulting from re Wakim and Bond. It was introduced only after extensive consultation with the states and territories and we expect that they will in due course introduce their own complementary legislation. It is, therefore, essential that the bill is passed quickly to minimise as far as possible the disruption resulting from these decisions.

Can I conclude by giving an example of an actual case and the delays that were occasioned as a result of the sorts of activities that we believe do not assist the criminal justice system in this country and in no way make it a fairer system. Allow me to detail this case. Following an investigation by the Australian Federal Police and a state police force, the defendant and others were charged with drug offences relating to the supply of cannabis. The evidence depended on conversations which were recorded under a telephone interception warrant and a listening device warrant. The preliminary hearing of the charge was listed to begin in November 1995. It was adjourned pending the completion of a Federal Court action for a review under the AD(JR) Act and section 39B of the Judiciary Act in respect of the listening device warrant and for declaratory and injunctive relief in respect of both the telecommunication interception and listening device warrants. In October 1995 a Federal Court judge made orders for limited discovery of the material placed before the judge who issued the warrants. The AFP claimed public interest immunity.

In November 1995, another Federal Court judge ordered transfer of the proceedings to the Western Australian registry of the Federal Court. Various orders were sought and a notice of motion was heard by a third Federal Court judge in Sydney in June 1996. His Honour adjourned the proceedings and stated a case and reserved questions for the Full Federal Court. In November 1996 the preliminary hearing of the substantive case was further adjourned to February 1997 as the case stated in the Full Federal Court had not been decided. The Full Federal Court decided in favour of the AFP in January 1997. Further proceedings were brought relating to the defendant's request that a subpoena be issued for the production by the AFP of the five affidavits in support of the application for the warrants, the material which was the subject of the order of the first Federal Court judge for limited discovery in October 1995. At the beginning of argument on the notice of motion it was ordered by consent that the order of His Honour be vacated. On 13 June 1997 a fourth Federal Court judge ordered that the defendant's subpoena to the AFP be set aside. The defendant appealed to the Full Federal Court against the decision of the fourth judge to set aside the subpoena. The Full Federal Court unanimously dismissed the appeal in April 1998. On my calculations, that is about 2½ years later. Before the substantive prosecution case could be dealt with, one witness died.

This is a prime example of how resort to the judicial review jurisdiction of the Federal Court can delay a prosecution. The Federal Court proceedings were commenced in Melbourne; transferred to Perth and then to Sydney; there was a case stated in Brisbane; a subpoena before the fourth judge in Sydney, and an appeal in Melbourne. I can say to this Senate that the government remains to be convinced that those sorts of tactics and antics do anything to engender confidence in our criminal justice system and indeed the fairness of the criminal justice system in this country. Basically, what we are saying is that once a court is seized of the actual matter, then it is the court that ought to deal with all the matters that may arise—the procedural matters and the challenges to evidence—as in fact happens in every single state trial that is conducted, which are the vast majority of criminal trials around Australia. That is the way it happens around Australia in every state jurisdiction every day of the week. I cannot in fairness see the arguments of the opposition in wanting to allow a situation to arise where people with deep pockets can frustrate the due criminal process of this country.

Question resolved in the affirmative.

Bill read a second time.