Page 2320 - Week 08 - Tuesday, 17 August 1993
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If we accept that principle in the case of less serious laws - civil laws, if you like - why should we not accept the same principle in respect of criminal laws? At least in theory, why should it not be possible for a court to find that a government has committed a criminal offence? That might be as far as it goes; it might simply be a declaration to that effect. But why in principle should that not be able to happen?
The other argument put forward in the Minister's speeches was that the Crown versus the Crown is a nonsense. You cannot have the Crown prosecuting the Crown. There is no reason, if one thinks about it very carefully, why criminal proceedings need to be taken in the name of the Crown. That is merely a convention, a stylistic matter which has ensued for some hundreds of years but which is not immutable. In fact, in the United States, I understand, there are a number of jurisdictions where people are prosecuted not in the name of the Executive but in the name of the people - the People v. Smith, the People v. Jones. That kind of thing is perfectly possible in the ACT context if we make constitutional changes to that effect. That is a development, I would suggest, that goes hand in hand with the concept of open government, accountable and accessible government, which stands in the same position with respect to the law as do ordinary citizens.
This will wake up Mrs Grassby, who obviously wants to go to bed. The question becomes even more pertinent in the unlikely event that Australia becomes a republic. Madam Speaker, you may wish to say that I am speaking hypothetically here because Australia may never become a republic. You may wish to strike me down on that basis; but, assuming that you do not so strike me down, let me say that in that event we will need to rephrase our terminology anyway. No longer, presumably, will the Crown be conducting prosecutions within a republic. If we change the terminology, it is quite possible to think about different terminology that might make more apparent the different status we should perhaps be conferring on criminal proceedings.
There is one other issue I want to raise in this respect, and that is the question of whether the ACT Executive can be equated in the ACT context with the Crown. The four Ministers who sit opposite here, alone amongst Ministers in this country, are not, as my understanding goes, Ministers of the Crown. Mr Connolly, Mr Berry and Mr Wood are not appointed by the Crown; they are appointed by the Chief Minister. The Chief Minister is not appointed by the Crown; the Chief Minister is elected by a vote of this Assembly. There seems to me to be, at least in principle, a question as to whether or not you can strictly make the assumption that the ACT Executive is immediately equatable with the Crown. We have chosen to assume in our laws that the ACT Executive will assume all the prerogatives and powers of the Crown, and that is obviously a necessary thing for the functioning of government. But we need not assume that everything which accrues to the Crown in other places should necessarily accrue to the Crown in the ACT. We might need to rethink that particular concept.
I do not suggest any amendments, because changes of this kind would be quite massive, and I must confess that I am not necessarily convinced that these arguments should be followed through to the extent that we do make the Crown liable for criminal prosecutions. I certainly would not suggest that acts of
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