Page 2831 - Week 10 - Tuesday, 13 September 1994
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the Territories have primary responsibility for the enactment of criminal law. That is an area, traditionally, almost exclusively within the preserve of the States and Territories; yet this, in a sense, is proposing a major extension of those principles which apply Commonwealth law to the States and Territories. Although it is not being formally proposed tonight that we in fact adopt this Bill, in a sense what the Assembly is being invited to do is to consider the adoption of this legislation as the law of the Territory in due course, and in particular to examine tonight the principle that we should be prepared to adopt a piece of legislation from another jurisdiction as the standard codified law of this Territory.
There are three things which I think are being aimed for in the Minister's package. First of all, he seeks to make, at some point in the future at least, quite significant changes in the criminal law of the Territory. I do not propose to discuss those changes in detail tonight because we are not actually being asked to vote on those changes tonight. Secondly, he seeks to pave the way for the codification of criminal law principles which are applied in our courts on a day-to-day basis. Thirdly, he seeks to adopt by reference a Commonwealth or national law to become the law of the Territory. It is not particularly significant that it happens to be a law of the Commonwealth. In the previous debate we spoke about the adoption of a uniform credit Act which will probably be Queensland legislation. So, it is not particularly important which jurisdiction we pick up. The point is whether we, with other jurisdictions, decide to adopt the legislation of the particular State or Territory or the Commonwealth and use that as the law which we all, across the country, enact as our own law.
I want to touch on those three questions in turn. First of all, there is the question of codifying criminal law principles applying in the Territory. The Minister talks about statute law and about common law and argues that it is important to be in a position to codify the criminal law principles which are used by judges and magistrates in our Territory, the argument being that if a person wishes to know what the law is they should be able to go to a particular document - in this particular case, this document - and find out what the law is, rather than seek it in a number of diverse sources. He does make this claim in his presentation speech - and I should address this - referring to those particular principles of criminal responsibility:
... these principles are largely unwritten, forming part of the common law.
I think, with respect, that goes too far. If the common law is not written down, then where is it; how do we know what it is? I think the Minister meant to say that the common law of Australia, indeed of this Territory, is not available in any one place to refer to but in fact is available, is to be found, in a great many sources - decisions of our own ACT courts, decisions of the High Court, decisions of superior courts in other jurisdictions in Australia, decisions of the House of Lords and the Privy Council and indeed of lower courts in the United Kingdom, sometimes even judgments of courts outside those places. So, there are an enormous number of places where we can look to see what the common law of the ACT might be.
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