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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2827 ..

MR STANHOPE (continuing):

to his counsel and say, "It is on again; they are going to try me again. I have just been released, but they want to do it to me again."

You have this enormously expensive application process and you expect him to foot the bill for that as well. That is just not on. If you are going to abandon double jeopardy, the state will have to bear the costs. That is only reasonable. But, as I say, it is not reasonable that we abandon the rules in relation to double jeopardy. This clause should be defeated; it should not be supported. This is crazy law-making and we should not countenance it. You are amending the law upon the basis of a whim. You are amending the law in circumstances where absolutely nobody can advance a good reason for doing so. Let us deal with that first. Let us knock this clause out, then we will not have to worry about who is going to bear the costs.

MR STEFANIAK (Minister for Education and Attorney-General) (2.29 am): We are speaking to the amendment, are we not, Mr Speaker?

MR SPEAKER: We are.

MR STEFANIAK: I have talked to a few members and I suspect that members are inclined to support Ms Tucker's amendment. I note that it is setting a precedent to an extent, but it is rare and I think that it is arguable that there are special circumstances. Mr Rugendyke has indicated that he will be supporting the amendment, as has Mr Kaine, which, effectively, gives Ms Tucker the numbers. I can see her point.

We will need to look at whether we are setting a dangerous precedent in relation to costs. In a way, I hope that we are not, because the occurrence is somewhat rare. I do not think that there is a similar provision in Western Australia or Tasmania, but I stand corrected there. It is highly unusual, but appeals of this nature are. It is certainly something that the next Assembly will need to monitor to see what, if any, adverse effect it does have. I note the numbers and indicate that I will not be calling for a division on this one. I can see that the numbers are against me. But I would reiterate that this is certainly a departure from the usual practice in criminal proceedings.

MR RUGENDYKE (2.31 am): I think the case has been made by both Ms Tucker and Mr Stanhope that in this sort of situation where the territory appeals against a decision and the defendant is put through a second trial at the territory's request the territory ought to be responsible for costs. I appreciate Mr Stefaniak's concern and I agree that we ought to be conscious of setting a dangerous precedent. The implication for costs generally could be a problem, but I see this matter as a one-off situation. I see it as a special situation. If it sets a precedent, it should be treated as a one-off situation.

Amendment agreed to.

Question put:

That clause 68, as amended, be agreed to.

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