Page 5505 - Week 17 - Wednesday, 4 December 1991
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MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (12.13): This definition is necessary only for the purposes of Mr Collaery's proposed new offence of transmitting X-rated films interstate, which the Government will be opposing. The Bill essentially falls into two parts: There is the offence of possessing child pornography and there is the offence of sending videos around the country.
Mr Collaery: If the debate is lost, I will withdraw the other one.
MR CONNOLLY: Then, at this point we will debate the issue of the sending of X-rated videos throughout the country. If that is a convenient way for the Assembly to deal with it, I will explain why the Government does not think that this is a desirable amendment.
Essentially, we have a difficulty with Mr Collaery's proposal to make it an offence to do something in the ACT that is dependent upon the state of the law elsewhere. If the Assembly wanted to say that it is an offence to send an X-rated video out of the ACT, the Assembly could say so. One's liability to punishment or otherwise under the criminal law ought to depend on the state of the criminal law within one's jurisdiction - not on the consequences of one's conduct here in terms of the state of the law in another jurisdiction.
I understand what Mr Collaery is trying to get at with this proposal; he is saying that it is a "put up or shut up" for the other States. But it is a bad precedent, we would say. The criminal law normally says that an act is either an offence or not an offence; it goes to conduct. Further, a person is presumed to know the law, which we all know is a legal fiction because very few people, even the most eminent lawyers, will know what the law is in respect of every activity.
Mr Duby: We have split decisions in the High Court.
MR CONNOLLY: Indeed. As Mr Duby says, even High Court judges sometimes can disagree amongst themselves. The structure of the criminal law should be that it takes objective conduct and says that it is either lawful or unlawful, so that a person can know that their conduct is either lawful or unlawful. What Mr Collaery is doing here is saying that the particular conduct - that is, to send an X-rated video through the post - is either lawful or unlawful, depending upon the state of the criminal law in other jurisdictions.
There is a degree of uncertainty as to the state of the law in Western Australia. We know that no other State has purported to make the possession of an X-rated video illegal. Western Australia probably has purported to do that, but there is considerable doubt as to whether or not
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