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Wednesday, 6 July 2011
Page: 4137


Senator JACINTA COLLINS (VictoriaParliamentary Secretary for School Education and Workplace Relations) (12:02): by leave—I thank the Senate for the opportunity to address some of the issues that Senator Siewert has raised. With respect to the reasons for retrospectivity, I should highlight, as indeed other senators have, that this is obviously not an issue to be taken lightly. We have not yet had the benefit of looking at the Scrutiny of Bills report but certainly many of the issues that I am sure—from my past participation in that committee—would have been raised have indeed already been addressed in the govern­ment's considerations and, as I understand it, also in discussions with the opposition.

They are certainly not issues to be taken lightly, but there is no question that the Commonwealth has the power to enact retrospective legislation. This is not the only area where the Commonwealth has applied matters retrospectively and, indeed, in the past, serious consideration has also been given to the principles that Senator Siewert has highlighted—acknowledging also the point that she made that that principle may not be absolute. We believe that the concerns in this matter are significant enough to be regarded in that fashion.

The amendment is necessary to underpin the integrity of the social security system. The retrospective application of the amend­ment is necessary to prevent the risk of a significant number of convictions for social security fraud being overturned on appeal. In this country, social security fraud is not considered a legitimate activity for a person to engage in. The Australian community expects that there will be consequences for people who have been convicted of defraud­ing the Commonwealth.

People have already been convicted of social security fraud who were aware of their conduct as an offence. They were given notices by Centrelink which stated that they must inform the department of the specified events and changes of circumstances listed in the notices. They did not do so. The effect of the retrospective application of the amend­ment is to confirm convictions that have already been made. It does not create a new offence.

The Criminal Code offences under which people have been convicted of social security fraud are not strict liability offences. They include fault elements which the prosecution must prove beyond reasonable doubt. This provides reasonable protection to defendants who were able to raise a doubt about whether they knew that they were defrauding the Commonwealth. Also, importantly, these provisions do not allow re-prosecution of past cases.

Let me conclude with some comments about the urgency of this matter and the reasons for the debate and the passage in this winter sitting session. This is a clarification of the original intent of the law going back at least to the year 2000, if not earlier. The legislation will provide certainty to the Commonwealth in the form of Centrelink and the Commonwealth Director of Public Prosecutions regarding the operation of the social security law and interaction with the Criminal Code. The parliament will rise on 7 July until 16 August. Should a decision contrary to the Commonwealth be handed down in that period, there will be uncertainty as to the status of convicted individuals. If the decision is contrary to the Common­wealth, it would place a substantial number—that is, up to 15,000—of convict­ions at risk. Currently, a number of cases are on hold and others have not been pursued by the CDPP pending the High Court decision. Absence of the legislation will further affect prosecutions.

The legislation is consistent with community expectations that individuals should receive only the payments and/or concessions to which they are entitled, and delay in the legislation will lower confidence in the integrity of the overall social security system

Question agreed to.

Bill read a second time.