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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3887 ..

MR HUMPHRIES (continuing):

a letter I received from the Chief Justice. I wrote to him after the Stafford decision and asked him whether his original advice to me that the law needed to be amended still stood on the basis of the decision in Stafford's case. Of course, the Chief Justice was a member of the bench in that case. He has written back and said:

I think that I appreciate your position, but I am able to give an opinion only "without prejudice". The Federal Court decision in Stafford v. The Queen may well have removed the perceived need for the proposed amendments (other than that relating to prevalence of the offence).

I will come back to that point in a minute. The letter continues:

But the proposed amendments would reduce any remaining uncertainty. However, I would not commit myself to the general proposition that the decision in Stafford v. The Queen, or the proposed amendments, merely "continue the common law".

That is the relevant part of that letter from the Chief Justice. I have also consulted with the Director of Public Prosecutions and asked him whether his advice to me remains the same. His view was very strongly of the gist that the amendments should proceed, for two reasons: First of all, the question of prevalence was not dealt with at all by the court in Stafford's case; it was not touched by the court. That issue remains a live issue and remains on the table. It is unaffected by the Stafford decision. The second point is that there was a 2 : 1 majority in Stafford's case. The two judges who decided in the majority that the common law was not changed by the 1994 amendments had entirely different reasons for reaching that view, as I read the decision. The third judge was a judge of our own Supreme Court - indeed, the Chief Justice of our own Supreme Court - and his view was, and remains obviously, that there is still uncertainty on this question and he believes that the legislature needs to speak to clear up any uncertainty on that question.

The one thing I have not yet perceived clearly from members in this debate is whether they take the view on rehabilitation that we were aiming to achieve with this Bill. Is Mr Wood saying in his remarks that he agrees with what we are trying to do but believes that the Stafford decision has done it already, or is he saying that he does not agree with what we are trying to do? If he believes that it is not appropriate to do what we are trying to do as far as rehabilitation is concerned, he should put forward some arguments to explain why he takes that view. He has not yet done that in the course of his comments. The Chief Justice has said - and the DPP has supported the view - that the wording of the legislation as it presently stands elevates rehabilitation above other factors. If Mr Wood believes that is appropriate, he should say so. It is not my view that it is appropriate, but if he believes it is he should say so. If he believes that it is not appropriate but that the Stafford decision removes any doubt about its being the case anyway, he should also say so. Anybody reading this debate would be extremely unclear, I would suggest, as to what the opinion of the Australian Labor Party on this matter actually is.

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