Page 2615 - Week 09 - Wednesday, 24 August 1994
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MR CONNOLLY: I apologise that the Opposition was not advised of the type of this statement in advance. There was an oversight in our procedures. This Bill, Mr Deputy Speaker, was introduced in the Senate on 30 June 1994 and it has far-reaching implications. The Bill is based on chapter 2 of the Model Criminal Code, a project of the Standing Committee of Attorneys-General and a project which has had close ACT involvement since its inception. The aim of that project is to provide model criminal provisions capable of replacing the common law and existing statutory provisions in all Australian jurisdictions.
Essentially, the Commonwealth Bill codifies the general principles of criminal responsibility as they apply under Commonwealth law. In several Australian jurisdictions, including the Commonwealth and the ACT, these principles are largely unwritten, forming part of the common law. This body of unwritten principles governs a wide area of criminal law, including what constitutes "intent" and an "act" for the purposes of the criminal law, as well as many of the defences, such as self-defence and mistake. The code contains a number of significant measures which, if enacted in the ACT, would change the law of criminal responsibility as it currently stands.
First, common-law offences would be abolished. This is not as dramatic as it sounds, as many of these offences have already been codified by statute, and many are no longer relevant to modern society. South Australia has recently abolished many common-law offences as a separate exercise, and the Government would look closely at what South Australia has done before moving on this proposal.
Second, self-induced intoxication would no longer be a defence to offences of basic intent. This is contrary to the current law as stated by the High Court in O'Connor, where it was held that the defence of intoxication applied to all offences. The Standing Committee of Attorneys-General believed that O'Connor was unacceptable in principle and opted instead for a defence of intoxication based on the decision of the House of Lords in a decision known as Majewski. One effect of the change would be that evidence of intoxication might reduce murder to manslaughter, but would not result in a complete acquittal. I believe that this accords with community expectations.
Third, the defence of mistake would be widened to encompass a mistake of law in certain circumstances. The law as it stands says that ignorance of the law is no excuse. The code would make an exception to that general principle where copies of subordinate legislation have not been made available to the public and the person could not be aware of the law even by exercising due diligence. This proposal flows from the policy that the law should be accessible, and from that point of view it is an important breakthrough.
Fourth, self-defence would require a subjective belief in the need to defend against a threat and an objective standard for the level of response. This is different from the existing law as stated by the High Court in Zecevic, where a partially objective test was stated for necessity, namely, that the belief in the need to defend against a threat must be on reasonable grounds. A purely subjective test has been preferred in the code for this aspect of self-defence, which accords with the general philosophy of the code that fault for criminal offences should be subjective - that is, what the accused actually believed or intended.
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