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Tuesday, 23 August 1994
Page: 86

Senator VANSTONE (6.35 p.m.) —I find it quite extraordinary that explanatory memoranda are now being used to offer guidelines to departmental secretaries or police commissioners as to what they ought to be doing. One would have thought that it should be manifestly clear on the face of the legislation—that would be ideal and that is what we should be aiming for—or, if that is not possible, that these matters be dealt with by way of regulation. It could be made clear in that way.

  I thought an explanatory memorandum was provided to explain what the act was about—and this does not. It is not an apparent inconsistency; it is an obvious, direct, clear as a bell, hit you in the face inconsistency. There is no point going on about it. It has happened—and people can form their own conclusions as to its appropriateness. I put the view that it is completely inappropriate.

  I want to make the point that it is all very well to say that this is guidance for the police commissioner in serious cases. Presumably, what the minister is saying is that where there is any gaol penalty involved the matter would be serious. The minister also talks about a serious financial penalty. But what is serious to one person may not be serious to another. Let us take, for example, someone who is out of a job and on some sort of allowance. Any pecuniary penalty will be very serious for that person. It may put that person in debt and other consequences may flow from that.

  What is serious to us as a nation is not the way to assess what opportunities we give people to maintain their liberty or save their property if they incur a fine. It is totally inadequate to say, `We, the state, will decide whether this is important. If it is not, you poor schmuck citizen will not get the benefits that you would normally get because, frankly, we have higher priorities than you or your rights.' It is an appalling situation to be in.

  The minister raised the point that that is not intended to apply when the protected witness is giving evidence on behalf of the accused. There is another way that he could delineate this. One could easily legislate and say that where evidence is being given against the accused—that would narrow it down—the information must be given. One could put an `if' on it. For example, if a gaol penalty is attached to the offence and the protected witness is giving evidence against the accused, the information must be given. That would be ideal because someone's liberty would be at stake. The evidence could deprive people of their liberty. The minister could make that appropriate change. I ask him to consider doing that.

  If I am correct, this bill does not specifically override parliamentary privilege so there will be an opportunity a year or two after the implementation of this bill to get from the commissioner some good understanding of the number of instances under which he has been so advised and what he has done. Does this bill override parliamentary privilege?

Senator Bolkus —I do not think it does.

Senator VANSTONE —We will get the opportunity to revisit this later, but I would rather it be done now. I understand the need to get the program in place. The minister may have witnesses lined up with whom he wants to get agreements. But he should not think for a minute that this is the end of this matter. It is not. We will be rehashing it in 12 months by going through the legal and constitutional affairs committee. We will go right through what the commissioner has done. We will do it in another 12 months if this cannot be fixed then.

  I come to the point about civil proceedings. The minister rightly says that in criminal proceedings, if there is a serious financial penalty, consideration will be given to making this information available. But, equally, in civil proceedings there are plenty of occasions when the reliability of one witness can turn a case one way or another. In those proceedings, the outcome is always—presumably nearly always, anyway—financial. In civil proceedings one would assume that, since the courts are so expensive to use, the financial outcome will be very substantial. It is so expensive to use the courts that people would not be in court and the evidence of a protected witness would not be used unless a very serious financial outcome was pending on the case.

  However, the minister does not give the police commissioner any opportunity at all to advise the court in those circumstances. If it is good enough for the protected witness to advise the commissioner when he or she is a party, as a witness, to criminal proceedings—in some other unrelated matter—why is it not good enough to do it in civil proceedings? If a $5,000 or $10,000 fine in criminal proceedings is enough to consider giving away the new identity and relocating the person, why should we not consider the $50,000, $100,000 or $200,000 outcome in civil proceedings to be equally important? It is important to someone who loses money, particularly when he does not have much. He does not draw a distinction by saying, on the one hand, `Oh well, this is okay. I lost this money because I lost a civil proceeding', and, on the other hand, `It is not okay because I lost a criminal proceeding that was being run against me.' People want the money and they think that it is being improperly being taken from them.

  We could have the situation where evidence from an unreliable witness is used to impose a financial penalty on a person in a criminal proceeding or has occasioned someone to lose money in a civil proceeding. We could also have the situation where counsel for the plaintiff in a civil proceeding or counsel for the defendant in a criminal proceeding did not have the opportunity to test the reliability of that witness. People do not care whether it is civil or criminal proceedings. All they want to know is what it is going to cost them. I would be interested to see what the government has to say to that.