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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2831 ..

MR STANHOPE (continuing):

before its commencement until 2006. The Commonwealth had allowed, I note, Mr Speaker, a similar five-year transitional period.

Criminal offences will still be able to be created in other statutes-for example, the Drugs of Dependence Act-but the general principles relating to the elements of the offence, burden of proof and criminal responsibility will be set out in the code. It may be, as we set off on this bright new adventure, that the ACT eventually will be a model for other jurisdictions. The Labor Party will support the bill, and we look forward to the vigorous law reform process which it will inevitably trigger.

MS TUCKER (2.46 am): There is some disquiet about this bill which will shift, over time, all of the ACT's criminal law away from the present common law and statute basis and into a codified system in keeping with the model code endorsed by the Standing Committee of Attorneys-General. While the case for a uniform code might appear clear, it is certainly not a procedure that this government is locked into in every instance. In fact, we have just finished debating a shift in the onus of proof in regard to valueless cheques. Fortunately it was not successful.

In reply to the Law Society, the Attorney-General was quite happy to argue that it was not appropriate in this instance to adopt the model criminal code provision. So, given that this government will pick and choose which aspects of the code it will adopt, we have to be concerned that immediately prior to an election it now seeks to commit the ACT to an extensive and ongoing reworking of our criminal law. One might have thought that more sensibly you would embark upon such programs after election when you would have the opportunity to ensure that the process was well managed over a number of years.

There are broader philosophical issues underpinning the notion of a criminal code. There is a presumption, for example, that a code will rule out many of the ambiguities in the law and lessen the role of the courts in shaping or interpreting the law. It is in fact an illusion of certainty as the role of the courts in interpretation will remain. The advantage of a criminal code, then, is more geographic than intrinsic. It gathers together some of the core values and principles of our criminal justice system and so makes them more transparent and accessible.

If we could arrive at a uniform code for all Australian jurisdictions, offences could be proved in the same way. Commonwealth/state prosecutions would be greatly simplified, and the evolution of criminal law across the nation would be facilitated. It is not reassuring then to see the government today introduce quite a number of amendments to the crime laws of the ACT which actually undermine the very principles that this code is set to enshrine.

Concerns that the Greens share with the legal fraternity are that the process is detailed and extensive, expensive in time, and requires a long-lasting commitment. Nonetheless, we are not opposed to the introduction of the code. We are just mystified as to why it is being introduced right now.

MR STEFANIAK (Minister for Education and Attorney-General) (2.48 am), in reply: I thank members for their support and their comments. Yes, obviously the government is very committed to this. It is true that we have a fair bit in common with the

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