Page 5506 - Week 17 - Wednesday, 4 December 1991
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the law in Western Australia actually has that effect. So, it is a high state of uncertainty. And a person's conduct in the ACT ought not to be an offence, depending upon such an uncertain state of the law in another jurisdiction. While the law says that one is presumed to know the law in one's jurisdiction, we would be creating a position where one is presumed to know the state of the law in every other State and Territory in Australia. And that is a bad law in principle.
So, the Government's opposition to this proposition is not an opposition based on support for or opposition to the X-rated video industry. If the Assembly wanted to say that it is an offence to send X-rated videos out of the ACT, we could have legislation proposing that, and we could debate that issue. Our opposition to this is based on the fundamental principle that we think it is bad criminal law to define an offence not by the objective conduct within this jurisdiction but on the consequences under the law of another jurisdiction.
For that reason, we would urge members to oppose the amendment to create a form of criminal offence which is unknown to the law in any other part of Australia. This would be a dramatic departure from the established canons of construction of criminal law. For that reason, we think it would be bad law, and I would urge members not to support it.
MR DUBY (12.18): Mr Temporary Deputy Speaker, the Attorney speaks very eloquently. I agree.
MR COLLAERY (12.18): Mr Temporary Deputy Speaker, the Gibbs committee, which is a committee of eminent jurists comprising the former Chief Justice of the High Court, Sir Harry Gibbs, Mr Andrew Menzies and Mr Justice Ray Watson, has been preparing for some time a report that should go a long way towards ensuring that there is a uniform criminal code throughout Australia - an endeavour that our Attorney, who just spoke, fully endorsed in this chamber some weeks ago.
When I have that report to hand - which will be in a few minutes, I hope - that report will disclose the fact that the committee fully accepts the notion of the modern need in this country to not treat each State and Territory as a foreign jurisdiction, but to have that uniform criminal code. The Labor Party can put this on the backburner if it likes. Labor members have not quoted one authority in law - not one bit of case law, as my colleague Mr Stefaniak can notice - to support this presumptive case. It can only be arguable. It is not an authoritative argument.
I accept that, once again, lay people in this Assembly can see it as most persuasive. Let them do that. There is a most eminent report that fully understands the need to give comity of recognition throughout Australia of other State
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