Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, the Greens support the amendments before us in the Justice and Related Legislation (Miscellaneous Amendments) Bill (No. 2) 2024. On behalf of the Greens, I am taking carriage of this bill in the House for our spokesperson, Ms Cassy O’Connor MLC.
My substantial comments relate to the changes to the Criminal Code Act 1924, probably one of the most significant changes in this bill. The bill before us amends the Criminal Code Act 1924 to make the definition of ‘sexual intercourse’ apply retrospectively to 1924. This is definitely a departure from the status quo in law, which explicitly provides that such a definition would not be retrospective.
For the history prior to 2017, the definition of ‘sexual intercourse’ was limited to penetrative sexual intercourse by male genitalia only. That was the only definition of sexual intercourse. In 2017, this was amended – a long overdue and long fought-for amendment by women working in sexual violence, by feminists, by women generally who understood that an amendment was appropriate to also include penetration by other body parts or foreign objects.
The 2017 amendments explicitly provide that the definition only applies to offences that were committed after 2017. The amendment in the bill before us today provides that the definition applies retrospectively to crimes that were committed before 2017, back to potentially 1924, excluding any matters that have already been determined.
Cassy O’Connor received a briefing on this and I thank the staff who provided that briefing. She asked then about this retrospectivity issue in relation to these prisons and, as I as I understand, retrospective criminal offences are understandably rare in Australia and tend to only be introduced when the conduct at the time was considered ‘criminal according to the general principles of law recognised by the community of nations’. The explanation for this retrospective provision before us today is that, although it does broaden the application of several offences to certain offending prior to 2017, that particular conduct would still, regardless of this amendment, be criminal under other offences. In other words, the retrospective amendment broadens the range of offences that a person may potentially be charged with for certain conduct, but does not make any non-criminal conduct criminal.
To be clear, as I understand it and I would appreciate the minister clarifying again for us ‑ you have done so, but just clarifying again – that this amendment will not open the door to a potential volume of charges being taken against persons for past acts that they did which, at that historical point, were not criminal acts. My understanding is that in this sense, it is different to establishing a law and making it retrospective, which would obviously open the door to a whole range of other potential fresh cases being taken.
The changes to the Forensic Procedures Act 2000, as they have been drafted, allow for the inter-jurisdictional sharing of forensic material for criminal investigations, also for court proceedings, immigration matters, the identification of people who have died and for criminal history checks. I understand that the amendment before us that has been flagged to this section and tabled by the minister are made following concerns raised by Ms O’Connor from the Greens about the broadness of this provision as it is currently drafted in the bill before us, and the amendment, which I understand the minister will be introducing in the committee stage, changes this subsection to instead clarify that references to an offence in existing forensic material-sharing provisions will apply to ‘an offence under the law of this state or the law of another state, a territory or the Commonwealth’. That seems to be a much clearer and straightforward provision and so we believe it would be a good outcome and we appreciate the minister’s preparation of that amendment to Clause 15 through the insertion of a new 3A, which the minister will talk about later.
The other sections of the bill before us are all supported by the Greens. I want to mention the changes to the Integrity Commission Act 2009. That has been amended in the bill to allow for either six or eight members on the Joint Standing Integrity Commission. Currently the number is six and that has been made on the basis that we now have a 35‑seat house and it is important to provide more opportunities for members to be involved in committees, especially such an important committee as the Joint Standing Integrity Committee.
On a related matter, the Greens asked for the Public Accounts Committee and for other committees to also be expanded so that we had the opportunity to be on those committees, but that request was denied by the government and I would like to understand the minister’s thinking for making these changes to the Joint Standing Integrity Committee but the government not being open to expanding the number of people on particularly the Public Accounts Committee, which is a very important committee, and to other committees to make allowance for the increased number of members in the House and for a better equity and involvement in the activities of committees by members of different parties or independents.
The changes to the Justices of the Peace Act 2018 are substantial and important. Allowing the secretary to set training requirements for JPs, which are currently only able to be set by regulation, is a sensible change. The prohibition on JPs from exercising their powers until they are provided with a registration number, I find that interesting that is not already the situation. On the face of it that is a very important matter to have to have clear before a person starts exercising their power. Extending the time frame that a JP has to apply for a reappointment from six to 12 months before the expiration of that appointment, yes, that is a valuable change. I guess that is done on the basis that it takes time for these things to happen and it takes time for people in a busy life who are acting in that important role on behalf of the of the community essentially as an additional duty as a very important activity that they do for us all, that they need as much time as possible to be able to get the matters in order to be able to make a reapplication that is necessary for a reappointment to occur, to make sure that process is as smooth as possible makes sense.
Extending the appointment period for JPs from two years to five years is manifestly sensible. Could the minister make any comments, if you are aware of the processes, if there was a concern a person in the community had about a diminution in the capacity of a person to act in the role of a JP? It is an additional length of time, two years to five years. If there was any concerns about how a person was executing their role as a JP, can you just describe if you know what the mechanism would be to write to make an alert to the secretary or the minister about that person and what the process would be for perhaps winding up a JP if allegations were made and they were found to be substantiated? I assume it would be the same process and that there would be a process in place now and the same process would stand. If you could just confirm that is the case and there is no change to that process, that would be helpful.
The JPs act changes also extend the validation provisions to include the circumstances where a JP’s term has expired, but they were not aware of that and they were acting in good faith also a very fair situation, and removing the limitations on the ability of the secretary to require information from a Justice of the Peace.
Currently, as it stands, that can only be done not more than once every five years, unless there is a reasonable suspicion of contravention of the act or of misconduct. That goes to what I just mentioned before. If, as it stands, any sort of concerns about contravening of the act or misconduct on behalf of the JP can only occur once every five years – I do not quite understand the situation as it is and the change that has being made.
I would obviously have thought that we need a system that provides at any time an opportunity to raise allegations of a JP contravening the act, or acting with misconduct, or being incapable of performing their role. It sounds from the changes that have been proposed in the bill that it removes the limitations there were on the secretary getting some information from JPs more than once every five years previously, and this bill changes it to make it on an as needs basis. Could you please explain the changes being proposed under the bill?
Finally, it requires every JP to be issued with a unique registration number. Again, that is a manifestly sensible idea and we support that.
I wanted to mention the Electoral Act 2004, which currently has it as an offence to vote in two divisions for an election on the same day. There is currently some ambiguity on whether or not it is an offence to vote in both Assembly and Council elections on the same day when these elections are held on the same day. The bill clarifies that that is not an offence, so that ambiguity is removed. There was a situation when that issue came up, I think in 2021.
I look forward to the committee stage where we tidy up that small change that we have noted. With that, I can give the Greens’ support to the bill.
