Page 4419 - Week 14 - Wednesday, 8 December 1993
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
Mr Humphries's foreshadowed amendment gives the option of a judge alone finding the facts if it is agreed by all the parties, but otherwise would have the position of three judges remaining. I foreshadow Mr Humphries's amendment because he has shown it to me. The Government thinks that that is too close to the status quo. Given that we wish to move quite a way away from the status quo over the coming year or so, the Government will not be supporting his amendment, although I would acknowledge that it is a step forward from the Law Society's favoured position, which was no change at all - three judges always and in every case.
Question resolved in the affirmative.
Bill agreed to in principle.
Detail Stage
Bill, by leave, taken as a whole
MR HUMPHRIES (4.38): I move:
Clause 8, page 4, line 6, proposed section 11(4), after "Judge", insert "with the consent of the parties".
I will not detain the Assembly for very long. Obviously, the Assembly will not be supporting this amendment, but I thought I should put the arguments for it on the record. I do not think that we are necessarily an enormous distance apart in these matters. I certainly also can live comfortably with a provision which requires a tribunal to exist. I understand that that is the position of at least some of my colleagues on my right here, and I think that at the end of the day that would be an appropriate outcome for this process. My concern is that until we have a process established whereby there is a tribunal in the ACT it would be more appropriate to provide some protection for people coming before the Supreme Court in this situation, and that protection would be better modelled on either the present arrangements in the ACT or something akin to the arrangements employed in other jurisdictions in Australia. I will come back to the argument about what happens in other jurisdictions.
The argument that has been put by the Law Society of the ACT is that where a practitioner is to face the forfeiture of his right to practise, and that, of course, means an end of that person's livelihood from the practice of the law, those proceedings are effectively quasi criminal in nature. A practitioner deserves at all stages of that process the protection which is akin to a jury trial, and that is to have more than one person considering the merits of the case which is being put before the court. I note that the ACT in the last few months has provided for some relaxation of the criminal law and has allowed for an accused person to consent to the hearing of proceedings against him or her to be held without a jury.
I emphasise that that arrangement occurs only with consent. These would be quasi criminal proceedings and they would be conducted in the absence of any fact finder other than a single judge if this amendment is not carried. There would not be any people who would assess the questions of fact other than a single judge in this case and I think, Madam Speaker, that that would be inappropriate.
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .