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Wednesday, 3 December 2008
Page: 12294

Mr McCLELLAND (Attorney-General) (9:28 AM) —I move:

That this bill be now read a second time.


The Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 is introduced at the same time as the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

That other bill will amend the Trade Practices Act 1974 to introduce new offences for serious cartel conduct. The amendments will also give the Federal Court jurisdiction to deal with the new offences.

The current bill sets up a procedural framework to allow the Federal Court to exercise this new jurisdiction.

The bill has been the subject of extensive consultation with the Law Council of Australia, the Federal Court, the Australian Competition and Consumer Commission, the Commonwealth Director of Public Prosecutions, the Australian Federal Police and the Office of the Privacy Commissioner.

Cartel conduct

Cartels undermine the operation of the market economy and that is why the Rudd Labor government is committed to criminalising that behaviour. The amendments to the Trade Practices Act will introduce new indictable offences with penalties of 10 years imprisonment for serious cartel conduct.

The Federal Court will be given jurisdiction to deal with the new offences because that court has extensive experience in dealing with cartel conduct as a result of hearing civil cases under the existing provisions of the Trade Practices Act.

The Federal Court is familiar with the concepts of cartel conduct and the impact it can have on the Australian community and economy. The court is well placed to deal with the new offences and to deal with cartel conduct in both the civil and the criminal contexts.

Federal Court

This will be the first time the Federal Court has been given indictable criminal jurisdiction and the first time the court will need to run jury trials.

It requires extensive amendments to the Federal Court Act and other legislation to allow the Federal Court to hear jury trials.

The bill includes provisions dealing with the form of indictments, entering pleas, pre-trial proceedings, bail, the empanelling and management of juries, the conduct of trials, right through to sentencing and appeals.

The Federal Court will not be given exclusive jurisdiction for the new cartel offences. The state and territory supreme courts will also have jurisdiction to deal with them. That has been done to ensure there is flexibility if, for some reason, it is not possible or practical for a trial to be run in the Federal Court of Australia.

The government has no plans to give the Federal Court indictable criminal jurisdiction in other areas.

The procedures

The bill will give the Federal Court the full range of powers it will need to exercise this new and important jurisdiction.

The provisions have been modelled on existing provisions in state and territory law, but are not a direct copy of any single set of provisions.

The bill sets a single set of procedures that will apply in all trials before the Federal Court irrespective of where the trial is held. The Federal Court will apply the rules of evidence set out in the Commonwealth Evidence Act 1995.

The alternative of picking up state procedures and rules of evidence is not workable. It would mean that the Federal Court could be required to apply different procedures for the same conduct depending on where the trial was being held. As a result, it would require the Federal Court and its judges to become familiar with the procedures and rules of evidence of eight state and territory jurisdictions.

Section 80 of the Constitution will require that any trial held before the Federal Court for a Commonwealth offence committed in a state must be held in the state where the offence was committed.

Pre-trial hearings

The pre-trial provisions are particularly important to the effective working of the bill. Trials for the serious cartel offences are likely to be long and hard fought. It is therefore important that as much as possible is done at the pre-trial stages to determine what matters are in issue and narrow down the issues which need to be considered by the jury.

There are extensive provisions dealing with pre-trial hearings and pre-trial disclosure. The provisions will impose pre-trial obligations on both the prosecutor and also the accused person.

The court will be able to take control of the proceedings at an early stage and will have power to ensure that the accused knows the case against them and has access to any unused material which is potentially relevant to responding to that case.

An accused person will not be required to disclose their proposed defence, unless they intend to raise an alibi or rely on mental impairment. However, the accused must provide a statement setting out, for each fact, matter and circumstance outlined in the notice of the prosecution case, whether the accused agrees or takes issue with it.

The court will also have power to require an accused person to disclose copies of any expert report they intend to rely on at trial so that, as far as possible, any dispute between experts can be resolved at the pre-trial stage.

These provisions are modelled on section 6 of the Crimes (Criminal Trials) Act 1999 in Victoria and section 137 of the Criminal Procedure Act 1986 in New South Wales.

Commonwealth Director of Public Prosecutions

In terms of the role of the Commonwealth Director of Public Prosecutions, trials for the serious cartel offences will be run by the DPP in accordance with the normal procedure in Commonwealth cases.

Committal proceedings for the new offences will be run in the state and territory committal courts in the same way as for other Commonwealth offences. The practical effect of the bill is that, if an accused is committed for trial, the choice of venue will rest with the Director of Public Prosecutions.

The prosecutor has traditionally made the decision on venue where more than one court has jurisdiction to deal with a matter. It has not been suggested that the Commonwealth DPP has misused this power in the past.

This bill will ensure that the Federal Court is properly equipped to deal with the important new jurisdiction that it will be given under the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

I commend the bill to the House.

Debate (on motion by Mr Wood) adjourned.