Page 446 - Week 02 - Thursday, 14 May 1992
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moved amendments on and deal with the amendments when they come up - other than to indicate generally that the Government does have problems with these amendments and, as presently advised, will not be supporting them.
I shall take us through Mr Humphries's comments. He remarked that it warmed the cockles of his heart that we were preserving the language of the Magna Carta in relation to cruel and unusual punishment, which, of course, is a phrase that finds its way into the American Constitution. It is the basis for their Supreme Court ruling in some cases against capital punishment, recently reversed, and that whole - - -
Mr Humphries: The Bill of Rights.
MR CONNOLLY: Yes. It was picked up from the Magna Carta, found its way into the American Constitution, and is one of the hottest political issues in the United States today. It is interesting how this language sticks around.
Mr Humphries probably would be even happier with the earlier Act that applies in the ACT. Members might be interested to know that part of the law of the ACT, pursuant to our Imperial Acts Application Act of 1986, is part of a statute of King Edward I, passed in the year 1285, relating to waste committed in a wood by one tenant in common. That is quite irrelevant to this debate but is a piece of antiquarian history that I am sure a good conservative like Mr Humphries would be pleased to know about.
Mr Humphries raised Part IV of the Bill in relation to the power of the police officer to dispense with some of those procedures on charging. Paragraph 13(1)(c) sets out the requirements that the police officer must comply with when charging the person. He pointed out that subclause 13(4) allows the police officer to refrain from doing that in order to prevent the escape of an accomplice of the accused or the loss, destruction or falsification of evidence.
I am advised that that, essentially, is a sort of emergency rule to allow the police to move more swiftly and not have to comply with these procedural requirements if they think something is about to happen. It mirrors, in some sense, the equivalent provision in the New South Wales legislation, in section 19 of the New South Wales Act, but contains additional protections in that in New South Wales the police officer can refrain from complying with some of the requirements which themselves are less onerous. There is no requirement to advise of an interpreter in the New South Wales legislation; there is no requirement to advise of a next friend in the New South Wales legislation; but there is the power to refrain from other formal provisions in this emergency situation, and then the New South Wales Act is silent.
We go a little further by inserting subclause 13(5), which does require the police officer who takes advantage of this emergency rule to set out and record the reasons for doing so. I think that is a provision that is acceptable. It strikes a balance between the need, perhaps, to move swiftly if there is a crime about to be committed or evidence about to be destroyed and preserving the clear requirement on the officers to comply with the Act and inform persons of their rights. It does model a provision that has been in force for some 14 years in New South Wales, apparently without abuse. It toughens it up to some extent with a requirement to record the exceptional reasons.
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