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Monday, 30 August 2004
Page: 26707

Senator ELLISON (Minister for Justice and Customs) (7:46 PM) —The government opposes this amendment. We believe that it seeks to remove an important safeguard. We believe that if you did not have this you could have the general public benefit defence available, but that would be uncertain and of benefit to no-one. It would certainly be open to abuse. Again, it would depend on the courts as to how they interpreted that. The proposed defence for approved research would remove that uncertainty which researchers may have concerning their ability to lawfully access certain material. For those who might think that it would be impossible to have a lawful or sound reason for accessing this sort of material, certainly law enforcement and criminologists and the like might well need to access material in order not only to gain intelligence but to do research on the issue. That is why we have this provision which allows for the minister to approve scientific, medical or educational research.

By having ministerial control over it we believe that it does bring certainty. The minister is accountable and can be questioned in the parliament. This is something which would have to be exercised very carefully by any minister. But to leave it open and to say that you can have the public benefit defence could, we believe, really leave the position unclear and be of no benefit to anyone, and the interpretation of the courts for that might vary over time. Leaving it to someone who is subject to public scrutiny, the scrutiny of parliament, we believe is more appropriate. I would envisage that it would be a discretion which would be exercised in circumstances which would be in accordance with what we are spelling out here. It could only be allowed for the purposes of scientific, educational or medical research and you could have psychologists or psychiatrists who might need to access this for legitimate reasons. I say again that we do not want to see this sort of material see the light of day. But there are situations—I know from my own experience practising in the law—where in studying criminal behaviour you do need to have that necessary research in relation to deviant behaviour. This could well assist in that research, but only in strictly limited situations, as we have spelled out. For that reason we believe that this provides a check, and not to have that check would be bad public policy.