George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

by leave—I move opposition amendments (1), (2) and (3) together:

(1) Schedule 1, item 8, page 4 (line 8), omit paragraph (d) of the definition of coercion in section 270.1A.

(2) Schedule 1, item 8, page 4 (line 9), omit "power;", substitute "power."

(3) Schedule 1, item 8, page 4 (line 10), omit paragraph (f) of the definition of coercion in section 270.1A.

The effect of opposition amendments (1), (2) and (3) would be to omit two of the subcategories from the definition of coercion in section 271A. At the moment, coercion is defined to include the following conduct: force, duress, detention, psychological oppression, abuse of power and taking advantage of a person's vulnerability. The effect of the opposition amendments would be to remove from the definition the categories psychological oppression and taking advantage of a person's vulnerability.

And we do that for one very straightforward reason. The terms are vague, they are undefined, they are potentially without limit, and they do not refer to established legal categories or concepts with an established legal meaning. Force, duress and detention, and, arguably, abuse of power—although I must confess that is somewhat wide itself—do. In particular it is very difficult to imagine that conduct which constituted duress would not be psychologically oppressive given that the legal definition of duress established over more than centuries of case law involves the overbearing of the will of the person alleging the duress.

It is very difficult, equally, to see how 'taking advantage of a person's vulnerability' would not already fall within the concept of abuse of power, because the whole point of abuse of power is that in the relationship between two people there is a disparity of power so that one is in a position to take advantage of the other.

I stress that this bill is largely uncontroversial. It has the opposition's support. But, equally, it is important when we write new categories into the law that we do not conflate legal definition with rhetoric. Much as one would wish to see in an act of parliament statements in the nature of exhortation about the evils of the practice which is prohibited, statements in the nature of exhortation have no place in the definitions of concepts. The definitions of concepts, particularly where those definitions—as I said a moment ago—rely upon well-established legal categories, are more safely left alone or, if they are sought to be extended, they ought to be extended in a way that is not merely rhetorical but has meaning and actually lends something, adds something, to the reach of the statute by expanding the definition in a certain and specific way.

There is, in my view, nothing in proposed subparagraph (d) of the definition—'psychological oppression'—or subparagraph (f) of the definition—'taking advantage of a person's vulnerability'—that is not already captured by the other four subcategories. So all we are doing is introducing new and vague concepts without making this law, which the coalition supports, more effective. That is bad legislative practice.

So for those reasons, and only for those reasons—that these words add nothing but flummery, as it were—the opposition moves the amendments I have foreshadowed that would leave the definition of coercion as conduct which includes force, duress, detention or abuse of power.