Page 1018 - Week 04 - Tuesday, 2 May 2006
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Mr Hargreaves, as I said, responded quite promptly to that. He noted the committee’s observation on the issue. He said, and I quote from his letter:
Having said that, Parliamentary Counsels Office … has advised that this is a standard clause for an alternative provision that has been used in ACT legislation for some time and is a Criminal Law Policy. PCO—
Parliamentary Counsel—
also advised that it is based on a Commonwealth formulation that is used in a number of Commonwealth offences and appears quite often in the ACT Criminal Code 2002.
That may be so, but I again highlight what the committee has said and our legal adviser’s point in this particular report that it is long accepted in our legal system that a court, by its very nature, accords procedural fairness to any defendant in any criminal trial, be it in a Magistrates Court or a Supreme Court. People criticise our courts for perhaps being too fair, but it is an historical fact that they afford procedural fairness. I wonder why, in situations like this where there is meant to be an alternative finding of a lesser offence because the facts do not support the offence initially charged, there needs to be a clause to this effect.
It has long been the case in trials that there is a provision for alternative verdicts. For example, in murder trials quite often a verdict of manslaughter is brought in. In manslaughter trials involving death by driving, a verdict of culpable driving, which is less than manslaughter, will sometimes be brought in. Similarly, a verdict of common assault as opposed to an assault occasioning actual bodily harm is sometimes brought in. There are any number of precedents to indicate and show, in relation to alternative verdicts, where courts, as a matter of course, have regard to the defendant’s rights. I wonder whether this new policy that is creeping in is desirable. There is much to be said in relation to the scrutiny report’s urging of caution here. Perhaps we need to revisit this. Do we really need it? Will there be unexpected consequences?
Having digressed to that legal point in relation to this particular act—and I commend to the government my comments and the scrutiny report—I will make some more points in relation to the act and the principles behind it. I am concerned to see in the statistics compiled by the RSPCA that we in the ACT are one of only three jurisdictions in Australia where the number of cruelty complaints increased over the previous five years. In 2001-2002, there were 601 cruelty complaints. In 2004-2005, this had risen to 746. Those are disturbing statistics.
Yes, I agree with the minister that we need to send a clear message to those members of the community who engage in this type of behaviour that it will not be tolerated. But I say to the Assembly and the government that, whilst this bill goes part of the way, it only introduces one new offence. If one has a look at page 4 of the bill, one will see a number of other offences. I note there are a couple missing. My colleague Dr Foskey might mention rodeos and things like that, but there are a number of offences.
We have section 7, cruelty. We have aggravated cruelty in this new offence. We have section 8, pain; section 9, confined animals; section 10, alleviation of pain; section 11,
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