Page 3515 - Week 09 - Thursday, 21 August 2008
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I hope that the government and the minister in particular will take this claim seriously rather than pushing ahead at such breakneck speed with its legislation. I have talked earlier this week about my concerns about this leaving everything to the last minute approach with legislation. I think it is bad for democracy. Passing laws on that basis leads to the scope for problems to occur.
We heard earlier today about the issues with third party. I flagged those some months ago. I was howled down by my former colleagues and now they are proposing changes reflecting the concerns I raised. Again, I do not profess to be some constitutional legal expert, but when a barrister raises issues of this magnitude and depth and thoroughness, I very strongly urge the Attorney-General to give some regard to it and not to rule these things out of hand. There seem to be some significant issues here for this jurisdiction.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (8.07), in reply: I thank members for their support of the legislation, albeit in some circumstances qualified support.
Before dealing with some other issues in relation to the legislation, I will respond to the issues raised by Mr Mulcahy, in particular, about the application of this legislation to the commonwealth Evidence Act. It is the case that the commonwealth Evidence Act applies in the territory. We have not repatriated that act at this time. However, the commonwealth Evidence Act allows other ACT acts to continue unaffected. Therefore, the SARP amendments will operate unaffected.
The only ACT act affected by these changes is the ACT Evidence Act 1971, but we are not amending that act. So it is wrong, and the claim made by Mr Archer is incorrect in that regard. I have paid close attention to the claims made by Mr Archer but it is simply not the case that the framework we are proposing tonight is in any way barred by the provisions of the commonwealth Evidence Act. The commonwealth Evidence Act makes it clear that other ACT laws are unaffected by the application of that act, so it is wrong to make that claim. But the government has looked at that claim by Mr Archer and others carefully and, based on advice, we have concluded that it is not a claim that is accurate.
In relation to consultation, we heard some fairly turgid spin from Dr Foskey. She accuses the government of turgid spin, but, rather than debate the substance of the legislation, Dr Foskey does not seem to miss a chance to take the opportunity to put the boot in and provide a characterisation of what she feels about what is wrong with the world. I respond by saying that there was a comprehensive consultation process with stakeholders. That included, at the earliest stage, the Human Rights Commission, the legal aid office, the courts and the Australian Federal Police.
That consultation raised a whole range of very useful issues, and we have incorporated many of those into the final model. But we cannot, and should not, fool ourselves tonight that this is an area of law where there is consensus. There is not. It does involve the balancing of the rights of the accused versus the rights of the complainant. It is a highly emotive and complex area of legal construction and it should be recognised as such. But it does not mean that what the government is
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