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Wednesday, 9 November 2016
Page: 2271


Senator McKIM (Tasmania) (10:48): I am very happy to—and glad that I am able to—bow to Senator Hinch's experience in this matter, which is far more personal than mine. Attorney, I just wanted to follow this up with you by drawing your attention to proposed new subsection 104.20(3) of the Criminal Code, which says:

As soon as practicable after a confirmed control order in relation to a person is—

The TEMPORARY CHAIR: Sorry, Senator McKim; the minister would like you to repeat which page you are reading from, please.

Senator McKIM: I may be operating with the language of a parliament in which I have previously sat, but I would regard it as clause 20 of the bill, which seeks to repeal a subsection of the Criminal Code and to substitute another subsection. Can I just ask your guidance, Chair. Is that described as clause 20 in this chamber?

The TEMPORARY CHAIR: I am told it is known as item 20, Senator McKim. Thank you, Clerk.

Senator McKIM: Thank you, I appreciate your guidance, Chair.

Senator Brandis: Can I add to that, because I get very excited about punctuation and nomenclature. If it is in a schedule, it is an item and if it is in a bill, it is a clause. This is in a schedule to a bill.

Senator McKIM: I appreciate the guidance from you, Chair, and from the Attorney with regard to nomenclature. Attorney, I am drawing your attention to the fact that the proposed new subsection applies a burden on the AFP to do a certain thing—in this case, to:

(a)   serve the revocation or variation personally on the person; and

(b)   if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person.

I will just draw your attention to the fact that that subsection merely relies on the words, 'as soon as practicable', and actually does not apply, for example, a four-hour time frame. The point I was making earlier is that this legislation appears to burden, in some circumstances, a person to whom a control order applies to a greater degree than it burdens, in other circumstances, the AFP. It seems as if the AFP can simply do something as soon as is practicable, but when it applies a burden to a person to whom a control order applies then you have gone the next step and applied the deadline, if you like, of four hours. I am just making that observation and offering you the opportunity to provide an explanation to the Senate as to why those two different approaches have been applied.