Page 54 - Week 01 - Tuesday, 16 February 1993
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The presentation speech that Mr Connolly gave on that occasion did not indicate any of the background to the rule being abolished, and it might have led one to believe that this was a fairly simple piece of law reform sweeping away an archaic provision which was no longer relevant to the interests of the Territory or any people of the Territory who might find themselves in a court. There was no mention of why such a rule existed in the first place. The blithe assertion that this Bill was good and necessary and urgent cannot be supported by the facts. Real life is a little bit more complicated.
The proposal has required much careful thought and analysis. It has also required a degree of consultation with the community affected by this provision. With respect, I do not believe that the Government has undertaken that consultation. It is quite clear that this Bill was not properly ventilated with many of the people whom it directly affects. I am thinking particularly of those legal practitioners in the Territory whose responsibility it is to defend people or who otherwise act in court proceedings which are affected by the present law. I had discussions only today, for example, with a member of the Law Society's criminal law committee, and I understand that members of that committee expressed concern about the general thrust of this legislation. There was disquiet about, if not opposition to, the changes which are being proposed with respect to children's evidence. It disturbs me that I had to find that out in such a way, rather than having had it clearly presented to me as a member of the Assembly or knowing about it because the Government had ventilated the issue in the community beforehand. Consultation was overlooked by the Government, or possibly even deliberately avoided.
Madam Speaker, the disquiet, or even anger, which this proposal generates centres on the position of a defendant in criminal proceedings, particularly criminal proceedings involving a child, and it comes fairly naturally, as my remarks already have indicated, from lawyers. Lawyers are trained - and Mr Connolly will confirm this - in their education about the law to focus very much on the position of the defendant. That is the focus of legal education in many ways. The defendant's rights and legal protections are very much a highlight in the teaching of criminal law in this country.
A maxim underpins the criminal law in the whole of the English legal system. I might not state it quite accurately, but it is to the effect that it is better that nine guilty people be acquitted than that one innocent man be convicted. The legislation could be described as attacking that principle, because it removes a particular protection for defendants in courts which has existed for many hundreds of years but which, by the same token, cannot be described as an archaic piece of legal gobbledegook. It is in fact, I would argue, a living and relevant piece of law which protects defendants in the position of being charged in a court, and it ought to be removed or modified only with the greatest care and caution by this Assembly.
By way of background to this legislation, I point out that in the ACT each year there is an unacceptably large number of unsuccessful or even unattempted prosecutions against alleged sexual offenders. By that I mean alleged sexual offenders against children. This Bill aims to reduce that number by changing the rules of evidence and removing a particular rule provided for the protection of a defendant. As I have indicated, that rule is not, in my view, archaic or anachronistic. It is not like the wearing of wigs in a courtroom, the calling of certain barristers queen's counsel or things of that kind. It is in a very different category.
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