The Law Association has laid the blame primarily on the Government for the Section 34 crisis which occurred last week.
In a statement yesterday, the Association said the contentious Section 34 of the Administration of Justice (Indictable Proceedings) Act was not contained in the draft bill sent to it by the Government for comment.
Like the Director of Public Prosecutions and the Criminal Bar Association, the Law Association said it never saw Section 34 or any clause similar to it when it was asked to, and commented upon the legislation, prior to it going to the Parliament for debate.
In its statement, the Association said furthermore it was "seriously concerned" that (after the Act was passed by the Parliament) neither the DPP, Law Association nor Criminal Bar was consulted before the "eventual piecemeal (and early) proclamation of that particular clause.
"We are satisfied that if members of Parliament had had the advantage of at least the DPP's views, which he has made public, and in particular had had the benefit of the list of pending proceedings which Section 34 would have impacted, the imbroglio which emerged during the preceding week (where an emergency session of Parliament had to be held to repeal the measure) would have been avoided".
"While we lay the blame squarely on the shoulders of those whose responsibility it was to engage in a meaningful process of consultation, both Opposition and independent senators must also accept some responsibility for failing to attempt to gauge the impact of the amnesty they were enacting into law," the Association stated.
On its early proclamation, the Association said: "It would obviously be relevant to consider what proceedings would be impacted, what stage these proceedings were at, how much state resources had already been expended and the causes of any delay... From what has been put in the public domain, it appears that there was some consultation with the DPP prior to promulgation.
"One therefore assumes that the relevant Minister would have been made aware that early promulgation (proclamation) would have brought an end to criminal proceedings which were far advanced, involved complex evidence and were subject to delay engendered by satellite proceedings in the High Court. It is also not in dispute that the vast majority of the provisions of the Act were not ready for promulgation since the logistical and other support needed to make the Act work were not yet in place... It could not be discounted therefore that pending criminal proceedings might have commenced in the High Court and brought to a conclusion before the Act was ripe for full commencement.
"In such circumstances, and in the absence of any information which indicated the need for urgent promulgation, it would appear that bringing Section 34 into force with effect from August 21, 2012 was premature and not in the public interest. It is not that the DPP was not consulted: it is that his salutary advice was simply ignored," the Association stated.
It said Section 34 was "fundamentally flawed for four reasons".
Firstly, the Association said, it provided for time running against the commencement or continuation of a prosecution from the date the offence was alleged to have been committed, instead of from the date the criminal proceedings commenced. This version (ie from the date the criminal proceedings commenced was what the House of Representatives initially passed. But it was amended by a motion introduced by Justice Minister Herbert Volney in the Senate in the dead of night).
In rejecting this position, the Association stated that the DPP pointed out that, especially in cases of complex fraud, the evidence needed to initiate a charge may not be gathered for some years after the commission of the offence.
Secondly, the Association said the provision did not make it clear that delay not caused by the State, but for example by satellite legal proceedings taken in the High Court by the accused, whether frivolous of not, was not to redound to the accused's benefit.
Thirdly, Schedule 6 of the Act, which exempted certain offences from dismissal because of the ten-year delay stipulation, did not include a number of offences as serious as those already included, the Association noted. It cited offences alleging fraud or corruption against public officials.
Fourthly, Section 34 was flawed because it failed to vest any discretion in the judicial officers charged with the responsibility of determining which cases should be dismissed.
"Such discretion is indispensable since it is not difficult to conceive of circumstances which may arise where serious injustice would be done by dismissing a charge, even where there is long delay," the Association stated.