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Senator Penny Wright speaks about the Crimes Legislation Amendment

Speeches in Parliament
Penny Wright 19 Aug 2015

Senator WRIGHT (South Australia) (18:27): I rise to speak about the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. This is a large and complex bill. It amends 14 separate acts and contains 17 separate schedules of amendments. It raises serious concerns for the legal profession, state and territory prosecutors and, indeed, the Australian Greens.

These concerns stem from the fact that this bill undermines a number of established common law principles which have evolved to protect against unjustified or disproportionate intrusion into individual rights. It is also an example of an increasingly ad hoc approach to criminal law reform by the Commonwealth government that threatens the progression towards uniform criminal law across Australia. Having uniform criminal law in Australia is desirable because it makes it easier to understand, administer, prosecute and defend in criminal matters, no matter what geographical jurisdiction is involved. In addition, having uniform concepts or definitions also assists where a case may involve a mixture of federal and state or territory law.

As is very clear from the many debates we have been involved in in the last few years, the Australian Greens are not prepared to give the government a blank cheque when it comes to amending the criminal law. The Australian Greens consider that it is of paramount importance that laws with far-reaching implications are subject to rigorous scrutiny to ensure that they are necessary, that is, there are no other laws which already do the same job; that they are effective, that is, that they will actually work; and also that they are proportionate in terms of their impact on individual rights.

The kinds of laws that require this kind of scrutiny have significant effects on people's lives. They impose criminal sanctions, and in some cases they restrict liberty or take away existing, traditional common law privileges. So this particular bill seeks to make changes to some fundamental features of our criminal law, from the mental element, which is usually required if someone is to be considered criminally liable, to the court's discretion to impose appropriate sentences and the sharing of information between prosecutors.

Unfortunately, these changes are being advanced without adequate consideration of whether they are necessary, effective or proportionate and without the support of the states and territories and other relevant stakeholders, such as the Law Council of Australia. For these reasons, the Australian Greens have recommended that the bill not be passed in its current form and will be moving amendments to remove the most concerning features of the bill, which are in schedules 5 and 6.

It is not possible to outline in detail each of the 17 schedules of this bill, so I will focus my comments on three schedules-one that we believe is particularly worthy of support and the other two, schedules 5 and 6, that we simply cannot agree with.

So let us look first at schedule 4, which is the forced marriage changes. The Australian Greens firmly believe that schedule 4 is to be commended and should be supported. This schedule does relate to forced marriage. The changes to the forced marriage offences are welcomed by the Greens, as is the recommendation made by the majority of the Senate Committee on Legal and Constitutional Affairs that the Commonwealth, state and territory governments review underage sex offences to ensure there is consistency between them and the federal offences of forced marriage.

But I must turn now to the most problematic aspects of the bill. These are: inserting the concept of being 'knowingly concerned' in the commission of an offence as an additional form of secondary criminal liability in schedule 5; and the introduction of mandatory minimum sentences of five years imprisonment for firearm trafficking offences in schedule 6. Both of these features of the bill have been strongly criticised by a number of individuals and organisations who have made submissions to the Senate Legal and Constitutional Affairs Committee's inquiry into the bill, including the Australian Human Rights Commission, the Law Council of Australia and Australian Lawyers for Human Rights. These features of the bill were also subject to rigorous and concerned scrutiny by the Parliamentary Joint Committee on Human Rights in its 22nd report of the 44th Parliament.

In its report the Parliamentary Joint Committee on Human Rights found that the mandatory sentencing amendments proposed in schedule 6 of the bill were 'likely to be incompatible with the right to a fair trial and the right not to be arbitrarily detained'. Mandatory sentencing provisions have long been shown to be ineffective and unfair, and for this reason the Australian Greens have always opposed them whenever governments of any persuasion have sought to introduce them in what is usually a populist bid to look like they are being tough on crime. This particular coalition government has repeatedly attempted to introduce mandatory penalties for firearm trafficking, removing the time-honoured role for judges to exercise discretion and judgment by taking into account the particular circumstances surrounding a particular offence and offender.

There is absolutely no evidence that mandatory sentencing reduces crime. But there is much evidence that it can lead to manifest injustice. Despite strong criticism from criminology experts, members of the judiciary, the legal profession and the Australian Human Rights Commission, this government remains determined to remove the court's power to impose a penalty that fits the crime, even though all the evidence suggests that this does not actually add anything to crime prevention. Indeed, the Attorney-General's own department has confirmed that it is not aware of any cases at all where the current sentences for trafficking of firearms or firearm parts have been insufficient. So why is it necessary?

The Australian Greens are not prepared to give up-in favour of mere cheap populism-important and respected principles to enhance the rule of law or Australia's international human rights obligations or indeed strategies for deterrence that are based on evidence. If the government is serious about preventing trafficking in firearms-and it should be-it should start by implementing the considered recommendations of the Legal and Constitutional Affairs References Committee's inquiry into illicit guns in Australia, which I chaired and which reported earlier this year.

For these reasons, the Australian Greens will be moving an amendment to remove schedule 6 from the bill.

I will turn now to schedule 5, which seeks to amend the Criminal Code to increase liability for an offence if a person was 'knowingly concerned' in the commission of an offence by inserting that new concept into section 11.2 of the Criminal Code. The Australian Greens share the same concerns strongly raised by the Law Council of Australia and others about this development. Why? You may ask: does it not sound reasonable on the surface? And that is the problem. This essentially introduces a new form of extended criminal liability into the Commonwealth Criminal Code without certainty or clarity about what the concept really means. There is already an extensive secondary liability regime under the Criminal Code, and this existing regime already makes it an offence to aid and abet or conspire with another to commit an offence.

The Australian courts are already intimately acquainted with the concept of 'aid, abet or conspire'. Some say it is a gold standard for secondary liability. This additional concept of 'knowingly concerned' was specifically considered and rejected as a form of secondary liability when the Criminal Code was being developed. It is an amorphous concept, more vague and open-ended than the traditional formula of 'aid, abet, counsel or procure', as was pointed out by those who drafted the current Criminal Code.

They rejected this addition at the time because they thought it 'would add little in substance and is more open-ended' and preferred the terms 'aid, abet, counsel or procure' because they are well understood in criminal codes across the country and within common law jurisdictions. It is bemusing to me that the Attorney-General is now turning his back on this accepted wisdom to introduce another category of criminal liability, particularly in the context of a rapid expansion of the type of conduct that now constitutes a criminal offence under the code.

The Australian Greens support efforts to ensure our criminal law is responsive to new forms of criminal activity and is effective in terms of deterring and prosecuting crime. We do have to respond in a timely and effective way to changes in criminal behaviour, but we also know that, while it may see a cheap and easy option to continually expanding the parameters of the criminal law, it does not guarantee strong crime prevention results. It may look as though something is being done; it does not necessarily work. This is particularly true when changes are made to the criminal law that make it difficult for police, prosecutors, juries and the community to understand what is and what is not an offence.

Introducing vague and complex concepts such as 'knowingly concerned' that move further and further away from the traditional elements of a criminal offence make it harder, not easier, to gather evidence and successfully prosecute those involved in criminal activity. The Law Council has asked the pertinent question: what does the addition of 'knowingly concerned' really add to the Criminal Code? For example, would a journalist who goes undercover to observe the actions of a particular group in order to write a story about them and sees them commit offences be 'knowingly concerned' in the commission of an offence? What if the journalist were an undercover police officer, obtaining criminal intelligence? What about a situation where family members give comfort to an aged and terminally ill parent who takes a suicide pill? Could the family members then be considered to have been 'knowingly concerned' in the suicide?

I will be asking the Attorney-General these questions in the committee stage of this debate. I guarantee that the response I will get from the Attorney-General will be the response I always get when I ask questions about where the drafting of the act is amorphous, unclear and uncertain, which is highly undesirable when you are setting up a criminal regime and people have a right to know what is and what is not an offence. The response I will get from the Attorney-General will be, 'Senator Wright, I don't deal in hypotheticals.' The problem is we keep having legislation proposed to us where the limits of the offences are not clear. It means that Australian citizens cannot go about their lives with the certainty that they are or they are not committing a criminal offence.

There is also a conceptual problem here. Under the new test of 'knowingly concerned', the prosecution would have to prove that the defendant intended to be knowingly concerned. The Law Council has, I think reasonably, submitted that this does not appear to make any sense. It also begs the question: if the prosecution has evidence that a person intended to be 'knowingly concerned' in the commission of the offence-for example, evidence that they intentionally participated in the planning of the offence-why could they not be prosecuted under an existing category of criminal liability such as conspiracy or aiding and abetting?

From a human rights and rule of law perspective, we should always set a high hurdle of necessity before sweeping new forms of criminal liability are introduced. In this particular case, legal commentators agree that the government has not even come close to justifying why we need this new concept of 'knowingly concerned' or what it would actually add, in practical terms, to the existing extended liability provisions in the Criminal Code. For these reasons, the Australian Greens do not support changes to introduce the concept of 'knowingly concerned' into the Criminal Code as a general principle of criminal responsibility. For this reason, in addition to amending the bill to remove the mandatory sentencing provisions, I will be moving an amendment to remove schedule 5 from the bill.


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