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Monday, 30 August 2004
Page: 26622


Senator GREIG (1:11 PM) —The Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 introduces a range of new offences relating to the use of a telecommunications network or carriage service, including interfering with a telecommunications service or using a telecommunications service in a range of areas, including with an intention to: commit a serious offence; make a threat or a hoax threat; menace, harass or cause offence; access, transmit, make available, publish or distribute child pornography or child abuse material; and procure or `groom' a person under the age of 16 years for sexual purposes. In addition to the telecommunications offences, the bill creates new offences relating to the contamination of goods, credit card skimming and child prostitution on Australian aircraft.

It also makes changes to the criminal justice process. For example, it codifies the maxim that ignorance of the law is no excuse by providing that a person is to be held criminally liable even if he or she is ignorant of, or mistaken about, the law creating an offence. In addition, a jury will be able to find a person guilty of a crime if the jury is satisfied that the person was responsible for the crime regardless of whether the person actually carried out the crime themselves. The bill further amends the Customs Act so that it would not be necessary to prove that a person charged with importing narcotics intentionally brought the prohibited substance into Australia. Finally, amendments to the Mutual Assistance in Criminal Matters Act will make it easier for foreign countries to obtain evidence from Australia in criminal prosecutions.

The Democrats moved to refer the original Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004 to the Senate Legal and Constitutional Legislation Committee for inquiry. That bill also contained a number of contentious provisions relating to the use of a carriage service to disseminate information inciting suicide, which the Democrats believe could potentially stifle debate on the issue of euthanasia. However, we are pleased that the government has chosen to deal with those provisions in a separate bill, which is now before the Senate Legal and Constitutional Legislation Committee—although I understand the hearings on that are being delayed by the prorogation of parliament. However, our concerns in relation to the original bill were not confined to the suicide provisions, and we were therefore pleased that the government also referred this bill to the Senate Legal and Constitutional Committee for further consideration.

Unfortunately, the committee's inquiry was incredibly rushed. The bill was referred to the committee on 5 August this year. A public hearing was held four days later and the committee reported to the Senate on 11 August. Only five submissions were received. I understand that a number of groups contacted the committee secretariat and indicated that the short time frame of the inquiry made it impossible for them to participate. It is disappointing and it illustrates how the incredibly valuable role of Senate committees in properly scrutinising legislation can be emasculated by the demands of government.

However, despite the extremely short time frame of this inquiry and the small number of submissions, the inquiry was nonetheless helpful in considering the provisions of the bill. One point that emerged from the committee inquiry was that the government appears to have undertaken fairly widespread consultation on the bill prior to its introduction. Electronic Frontiers Australia—EFA—indicated that many of the issues and concerns which they had expressed in April had been addressed and resolved to their satisfaction by the Attorney-General's Department prior to the introduction of the bill in June. We Democrats take this opportunity to acknowledge and commend the government on engaging in a proper and good process of consultation. We note that this level of consultation does not always occur, yet the benefits of it have been made clear, at least in this instance.

However, we Democrats do note and are disappointed by the fact that a number of the provisions of the bill do pre-empt the completion of the government's review—which was announced in July this year—into illegal or offensive content on mobile telephones and other mobile devices. I think one has to question the value of such a review when its outcome is being pre-empted by the legislative change just one month after the announcement of the review.

Although many of the Democrats' concerns about this bill have been allayed as a result of the committee inquiry, we do have a number of outstanding concerns. The first of those relates to the offence of using a carriage service to menace, harass or cause offence. The offence occurs if a person uses a carriage service and does so in a way that reasonable persons could regard as being menacing, harassing or offensive in all the circumstances. Our particular concern in relation to this offence is that there is no requirement for the person to have intended to menace, harass or offend another person, nor that any person was actually menaced, harassed or offended. As a consequence, concerns have been raised about the potential impact of this offence on those who use the Internet or email to advance or elicit support for a particular cause—for example, to organise a peace rally. There are some fears that these provisions could stifle genuine political debate on the basis that using a carriage service to advance a particular cause could be seen by some as menacing, harassing or offensive.

We Democrats accept the point made by the Attorney-General's Department during the committee inquiry that it would be very difficult to successfully prosecute a person who uses a carriage service to express a genuinely held opinion, particularly in the context of political debate. However, we do not believe that serious concerns about the elements of an offence should remain unaddressed simply because the offence will be difficult to prosecute. That is simply not good law making. We should be addressing any concerns in the text of the legislation, not in the way in which it is applied within the community.

Another concern which we Democrats have relates to child pornography offences. The bill provides that it will be a defence to child pornography offences if the defendant can demonstrate that their conduct was of public benefit. The bill contains a very strict definition of what is considered to be `of public benefit' in these circumstances, including the undertaking of research `approved by the minister in writing'. While the Democrats certainly welcome the provisions relating to the new child pornography offences contained in this bill, and the fact that there are only a very limited range of defences, we are concerned by any provision which requires genuine, independent research to be vetted by the minister.

We have discussed this concern with the Attorney-General's office and we understand that the government takes a view. However, it has clearly been a difficult issue for the government. In his evidence to the committee, Mr Geoff McDonald from the Attorney-General's Department said:

... I suppose one of the most difficult issues that we did face was the whole issue of research into paedophilia and making sure that we had an appropriate mechanism for dealing with that. We had a general test, which related to research, and some of the feedback we got was that this had actually been misused by people in the past. Consequently we tightened up the provisions in relation to research. We spoke to the Australian Institute of Criminology about just how prevalent this research was, and the information we received was that it was not very prevalent. To make sure that there was certainty with the provisions, we decided that where it was specific research into paedophilia we would have an approval process from the minister for justice. We were concerned that it was difficult to get a good general formula.

We Democrats accept that this has been a genuinely difficult issue for the Attorney-General's Department and we acknowledge that there may be some scope for a general defence of public interest research to be abused. However, we do not believe that this warrants a system in which independent research ought to be vetted by a minister. In our view, it would be much more appropriate for a court, rather than a minister, to determine whether particular research is of public benefit, otherwise a political perspective may well be brought into that determination. We Democrats will be seeking to address that issue further during the committee stage.

Finally, I want to take this opportunity to make some brief comments about the principle that ignorance of the law is no excuse, which is addressed in the bill. In particular, I would like to highlight some observations that I recently provided to the Alternative Law Journal regarding legal education. I argued:

Our daily lives are governed by thousands of Acts, Regulations and common law precedents. Yet, as the Bill before us reinforces, if we breach any of these laws, ignorance is no excuse and we will find ourselves criminally liable.

This leaves us with the anomaly that we are all presumed to know a vast array of laws, which no judge, lawyer or law-maker could possibly be completely familiar with, and there may be many serious criminal consequences if we make a mistake. However, one way in which to overcome this anomaly is to ensure that the law corresponds to community standards. In other words, we can endeavour to create the kind of legal system which ensures that, if you live your life in a way that roughly accords with community standards, you can be pretty confident that you are not breaking the law.

For this reason, it is vitally important that the law reflects community standards. To ensure that this is the case, those of us who make laws should be held accountable through the democratic process, while judicial accountability arises from the provision of reasons for decisions. But whether we are talking about new laws or the judicial development of existing law, it is vital for the community to have a basic understanding of the democratic process and the law for these accountability mechanisms to work effectively.

Unfortunately, there is evidence to show that many Australians do not possess a basic understanding of the law. The Civics Expert Group report of 1994 found that only 18 per cent of Australians showed some degree of understanding of the Constitution and only 41 per cent knew how the Constitution can be changed, despite the vast majority having voted in referenda. Only 40 per cent of Australians could correctly recall the names of both houses of parliament and only 50 per cent knew that the High Court is the highest court of appeal. The Civics Expert Group report argued:

When lack of knowledge on how government institutions work and an uncertainty of what the civic ethos means is coupled with a mistrust of politics, a danger arises. Our system of government relies for its efficiency and legitimacy on an informed citizenry; without active, knowledgeable citizens the forms of democratic representation remain empty; without vigilant informed citizens there is no check on potential tyranny.

We Democrats believe that civics and legal education have an important role to play in making our system work effectively, and there is a real need for a more comprehensive approach to civics education in this nation. A greater understanding of our legal and democratic systems is needed within the Australian community to ensure that the `ignorance of the law is no excuse' rule does not result in grave injustices and the conviction of individuals who never intended to commit a crime. This is particularly crucial at a time when, increasingly, the government is moving towards the creation of strict and absolute liability offences. I take this opportunity, in the dawn of an election campaign period, to challenge the government on the issue of civics education and to ask what it is doing on this front to address the issues that were so clearly identified by the Civics Expert Group some 10 years ago.