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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2817 ..

Mr Stanhope: We can't even afford to create a perception.

MR STEFANIAK: You are quite right about perception. My department tells me that repeal of 475 would have absolutely no effect on the Eastman inquiry. The repeal of 475 would not affect the current inquiry in any way. The inquiry may go ahead as if the repeal had not taken place. I make that point because this was the very question I raised. There may well be some other issues in terms of 475 and what can happen there, and I think it may well be important for the Assembly to look at that. But what is proposed here would have no effect on the current inquiry.

There has been some speculation in the media, too, that these amendments have somehow been developed to prevent Mr Eastman from accessing an inquiry into his conviction. That is certainly not true. The department, I am advised, has been considering amendments to section 475 since 1994, which was before Mr Eastman was actually tried and convicted.

It is certainly true, of course, that the issue of the Eastman matter has focused attention on the deficiencies in the existing section 475 and the need to proceed with the amendments, and those deficiencies were acknowledged by the scrutiny of bills committee in its 10th report. There are some other matters in relation to the 475 inquiry which I think we need to look at, too.

Mr Stanhope, perhaps I might address your two amendments. Your amendment No 15 to clause 41 seeks to omit proposed new paragraph 557B (1) (c). The amendment would omit the criteria for holding an inquiry which provides that doubt or question could not have been properly addressed in a relevant proceeding.

This amendment may seem innocuous but it has the potential to undermine our criminal trial and appeals system by allowing defendants or their representatives to actually stay silent, or forget to raise a particular matter during the trial or appeal, and then seek another bite at the cherry by raising the matter at a later date, with a result that the whole trial process would need to be undertaken for a second time. The amendment may also lead some legal practitioners to take less care in preparing their cases by giving them an out if they forget to raise a key issue at trial or on appeal.

The government is firmly of the view that paragraph (c) is necessary to ensure that inquiries are ordered only where the defendant could not raise the matter at trial or on appeal-for example, because a defendant was mentally unfit or otherwise unable to instruct the defence team or because relevant evidence was not then available. So we will be opposing that amendment.

Mr Stanhope, the government does not oppose your amendment No 16 relating to proposed new section 557J (2) (ba), which will allow the court to quash a conviction following an inquiry without ordering a retrial. I am advised that, while the amendment is probably not necessary from a practical standpoint because the DPP would be able to discontinue any proceedings against a defendant who gained a retrial following an inquiry, if the inquiry indicated that the defendant was innocent it may speed up the process of clearing such persons formally. So we will be supporting your second amendment.

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