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Legislative Assembly for the ACT: 1996 Week 13 Hansard (3 December) . . Page.. 4297 ..

MR HUMPHRIES (continuing):

What would the criteria be? If you say that the criterion should be the capacity to pay, then you are intervening into what is already the discretion of the court when it imposes a fine on people for breaking the law in the first place. The court does take into account the means that a person has before they impose the fine. If we are also plugging this into the same equation, we are simply duplicating the discretion which the court already has in this respect. If we somehow link it to the seriousness of the crime that has been committed and the likelihood of the system having to make a payment for compensation to an individual who has been a victim of a crime, that would not be, I suggest, more socially just in itself.

What Mr Moore overlooks is the fact that the court already has that power; the court already has the power to say, "You, Mr Defendant X, have committed this crime. We have convicted you of that crime. You have occasioned X thousands of dollars of damage to Mr Y. Therefore, we intend to impose an order on you, X, to pay Y those damages". That capacity already exists as a direct transfer from defendant to victim. But it does not work very effectively at the moment, because there are very rarely circumstances, apparently, where the court can feel it is appropriate to determine that direct payments should be made by X to Y. Linking the payment to the size of the damage occasioned or the problem caused by a particular criminal act does not work, Mr Speaker. Similarly, I would say that linking it to the seriousness of the offence is, unfortunately, fairly inflexible. Someone might commit a quite serious offence, such as a serious traffic offence, where there is not actually any victim. On the other hand, they may commit a quite minor offence but cause huge damage to a particular individual. Therefore, it is also inappropriate, it seems to me, to link it to the seriousness of the particular offence. In any case, again, in the first place, the court imposes a fine according to the seriousness of the offence; and that should be the basis on which the decision is made.

Mr Speaker, we have had consultation with the community. In fact, I can say to the Assembly that the legal community advanced no particular better calculation for the charge; that is, no better basis on which to impose the charge. They made some suggestions about improvement of the charge's application; namely - and this was an issue raised by Ms Follett in the Estimates Committee - whether a person who has a multiplicity of convictions should be fined a number of times. The suggestion was made, very sensibly, that a court should have an obligation to impose the $30 charge on the first conviction but, for subsequent convictions arising out of the same set of circumstances, the court should have a discretion to waive any charges. That is a sensible suggestion that came out of consultation with the community. But I would say to Mr Moore that, if he believes that there is some better system, he should tell us about it, because I do not believe he has yet persuaded anybody that there is a better way of applying a system of this kind.

Bill, as a whole, agreed to.

Bill agreed to.

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