Page 2833 - Week 10 - Tuesday, 13 September 1994
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Where we are talking about the criminal law, where a person's liberty is at risk potentially, or their money sometimes is at risk, by virtue of doing certain acts, it is incumbent on us, I believe, to work towards a situation where a citizen can be reasonably certain that what they do anywhere in the country will have the same consequences in terms of the criminal law. That is why, Mr Acting Speaker, despite my reservations about the value of common law and my view that there is certainly still a role for State and Territory parliaments to be making laws in these areas, we strongly support the principle that codification, particularly of the criminal law, should be attempted and that that should be aimed for as a national project to which all Australian jurisdictions subscribe.
I might say, moving to the second question - the adoption of uniform law - that we cannot achieve uniform law unless we have a model or a template, and in this case the Commonwealth is in the process of enacting law which would indeed constitute that template. There is a danger with this approach that we might work on the principle that the lowest common denominator should prevail and that only those things on which all nine jurisdictions in Australia can agree should be incorporated in this kind of code. I do not think, looking at the code that is in front of us tonight, that is actually what has happened; but I do think that is a danger which we must be alerted to.
I think it is also important to place an important caveat on this process. I do not believe, and my party does not believe, that, by striving to achieve uniform legislation throughout the country, we should therefore forgo, or permanently surrender, the right of States or Territories - the second tier of government, in other words - to make law in this area. A very good example of this kind of divergence in law-making, of course, is the present controversy about the so-called anti-gay laws that are in force in Tasmania. It is apparently the view of other jurisdictions that those sorts of laws not be enforced. It is apparently the intention of the Tasmanian Parliament that they remain in force. So, we have an interesting conflict between what other Australians think should be the law in Tasmania and what the Tasmanian Government, at least, think should be the law in that place.
For the moment I put to one side the question of whether those laws are good or bad laws; but I will say that I think it is very important that we understand that, under the present constitutional arrangements in this country, it must be the prerogative of individual States and, by extension, Territories to make laws that they consider to be in the best interests of their own citizens. If the situation were reversed, and if we were being imposed upon by other jurisdictions in respect of a law which we strongly believed it was important to preserve or maintain for our citizens, then we would certainly be very jealous of that principle and be prepared to defend it vigorously against the suggestion that uniformity should mean the right to forgo our right to enact legislation particularly applicable to the ACT. However, by a process of negotiation and consultation, it seems to be possible to agree on at least the important principles underpinning our criminal law and to agree on those across the country. That will, I think, be a major achievement. There may be other areas in which agreement cannot be reached. That, however, does not detract from the main exercise.
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