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- 24 February 2004
Retrospective Criminal Laws
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The Hon. PETER BREEN [6.10 p.m.]: I was amazed earlier this week to see Prime Minister John Howard on the Nine Network television news condemning retrospective criminal laws. "It's fundamentally wrong to make a criminal law retrospective," he told a television reporter, "We don't support that and won't support that," said the Prime Minister. Mr Howard was responding to a suggestion by the Federal Leader of the Opposition, Mark Latham, that antiterror legislation that commenced in July 2002 be backdated to include the allegations against Mamdouh Habib and David Hicks, who are held at the pleasure of the Government of the United States of America in Guantanamo Bay.
The stand of the Prime Minister is to be commended. Article 11 of the Universal Declaration of Human Rights provides that a person should be sentenced under the law in force at the time of the crimes he or she committed. To sentence a person under a later regime is to shift the goalposts in a way that contravenes every principle of due process in the criminal justice system. An analogy that comes to mind is former transport Minister Carl Scully's proposal to increase penalties for certain driving offences. If Mr Scully were to back date the new laws so that everyone who committed the offences in the previous two years were required to pay the additional fine, the result would be road rage on a massive scale.
As with the issue of parliamentary superannuation, Mark Latham is forcing a wedge into the Government frontbench with his call for retrospective laws to bring home Mamdouh Habib and David Hicks. Already the Federal Attorney-General, Philip Ruddock, seems to be falling in line behind the Prime Minister saying he has "a longstanding objection to retrospective criminal laws". Mr Ruddock knows as a lawyer, however, that it is possible, despite the difficulties, to pass retrospective criminal laws in the case of the Guantanamo Bay prisoners.
I have some sympathy with Mr Ruddock's position. Just three weeks ago, the High Court confirmed in the course of argument in the case of Baker v The Queen that Parliament does in fact have the power to pass retrospective criminal laws without trespassing on the judicial power referred to in chapter III of the Commonwealth Constitution. Mr Ruddock must weigh the competing principles involved in the indefinite and unlawful detention of Hicks and Habib on the one hand and the very real prospect on the other of retrospective legislation that will allow the two prisoners to be repatriated to Australia. After all, the British have arranged for five of their nine citizens held at Guantanamo Bay to be sent home, and Australia should be going down the same track if we are to retain any self-respect out of the international embarrassment that is sometimes described as "the coalition of the silly".
Members will recall that Baker v The Queen is the High Court appeal involving the murderers of Virginia Morse, Anita Cobby and Janine Balding. Ten prisoners are convicted of these horrific crimes and each of the offenders was the subject of a "never to be released" recommendation by the original sentencing judges. I had some involvement in the Baker case at the request of family and friends of two of the prisoners convicted of the murder of Janine Balding, Stephen 'Shorty' Jamieson and Bronson Blessington. On previous occasions I have related their circumstances to the House. I will not do so again this evening, however, I want to respond to comments by the Premier, Bob Carr, and the Leader of the Opposition, John Brogden, about my involvement in the case.
In an article in the Daily Telegraph on 6 February 2004 Mr Carr is quoted as saying: "I'm disappointed that an elected member of the New South Wales Parliament would actively work to have these criminals released." In the same article, Mr Brogden described me as an "apologist for murderers". That statement is almost certainly actionable, but just as I do not agree with politicians supplementing their incomes with retainers from large accountancy and law firms, I am opposed to members exploiting defamation laws for personal gain. Free speech is a much more important principle in my opinion than protecting the largesse of the rich and powerful who seek the inside running on matters before the Parliament.
As to Mr Carr's statement that he does not expect political representatives to work for the release of prisoners, I can only say that Mr Carr has a short memory. The first policy implemented by the Whitlam Labor Government following its election in 1972 was to order the release of all political prisoners from prison. Few people would argue that the "never to be released" prisoners cemented into their cells by Mr Carr are not political prisoners, and I will continue to work for the family and friends of the two prisoners I have mentioned. Honourable members may be aware that the Independent Commission Against Corruption [ICAC] now has enough material on my private and public life to sink the Manly ferry, and yet even the ICAC can find no fault with my work for prisoners.
One need only examine the political career of the late George Petersen from the Illawarra to find a member who spent much of his time working for prisoners. It was George Petersen who exposed the Bathurst gaol bashings, and his relentless campaign for prison reform led directly to the Nagle royal commission into prisons. This week a symposium will be held in Parliament House to mark the twenty-fifth anniversary of the Nagle report, and one of the highlights of the symposium will be an analysis of the Carr Government's record on prison reform. It is a record to rival the trains, the hospitals and public education, and I will not be deterred in my efforts to do everything I can to improve the lot of prisoners in New South Wales.
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