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Plan for Federal Court to hear ASIC criminal trials needs more work: LCA
Although the government’s proposal to introduce ASIC criminal trials to the Federal Court is good in theory, the Law Council is concerned there is not enough clarification to justify such a “significant change”.
Naomi Neilson
In the reading of the Portfolio Miscellaneous Measures Bill 2023, Attorney-General Mark Dreyfus said amendments within the bill would enhance the court system to allow it to not only deal with more corporate offences but also assist with prosecutions brought by the Australian Securities and Investments Commission (ASIC).
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This is linked to its response to the banking royal commission, in which it said extending the Federal Court’s jurisdiction “will boost the overall capacity within the court system to ensure the prosecution of financial crimes does not face delays as a result of heavy caseloads”.
As part of the overall plan, the government has provided an additional $70.1 million to boost ASIC’s enforcement activity and $41.6 million to the Commonwealth Director of Public Prosecutions to prosecute an increased number of briefs received from ASIC.
In a submission to the Senate legal and constitutional affairs legislation committee, the Law Council of Australia (LCA) said it appreciates the government’s efforts, but the proposed bill “represents a substantial change” to the court system.
“Any such changes necessitate detailed justification, which the Law Council is concerned has not sufficiently occurred to date, especially without visibility of the Attorney-General Department’s submission to the committee,” the LCA submission read.
The Law Council has proposed a number of recommendations to strengthen the bill, including requests for further clarification on some of its rationale, particularly “given delays in prosecuting criminal corporate crime are not dependent on jurisdiction”.
The LCA said it understands from constituent bodies that delays arise due to “extensive documentary evidence” and because the matters are of such “high complexity” that it will include ongoing investigations and “multiple tranches of brief service”.
It has also requested clarification on how the bill proposes to manage existing constraints on the court’s exercise of the criminal jurisdiction and asked for further information on how it intends to allow the court to transfer proceedings across the Australian court system.
The submission went on to outline concerns with the judges of the Federal Court, acknowledging while some will have “significant experience” in federal criminal law, “the reality is that a significant portion of Federal Court judges will have limited experience”.
“The Law Council is concerned there may be insufficient numbers of Federal Court judges with experience running complex criminal trials in every superior court registry, particularly in Adelaide, Brisbane and Perth,” it added in the submission.
This would also be a concern when an appeal will be required, as it would likely “lead to a very small number of trial judges sitting in judgment of each other’s rulings and directions”.
