Page 4432 - Week 10 - Thursday, 23 September 2010
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
committees in the Bar Association, in particular, and other matters mean that some of the organisations that would normally respond to us have not had an opportunity to do so. The thing about this amendment is that it looks to be superficially simple, but it has more substance to it than a simple first reading would indicate.
This amendment adds to the list any directions that would be required to be given and comments that would be required to be made to a jury in the case of a judge-alone trial. It says essentially that a judge in a judge-alone trial must take into account any warnings that the territory law might require a judge to give to a jury where the trial was conducted in that format.
Based on previous legal interpretations of the basis and effect of these elements of the bill, the scrutiny of bills committee called the amendments “a change of some substance”. It is worth noting that the advisers to the scrutiny of bills committee did point out to the committee that, on the basis of the motion passed by the Assembly earlier this year, they were surprised that this matter was included in an omnibus bill. The committee asked whether a judgement that did not take account of all elements might result in a successful appeal. Indeed, substance it is, and it deserves more detailed consideration and an honest assessment of the legal consequences of this amendment.
For example, judges are well versed in the law. Members of juries could be but generally are not. It would be reasonable for a judge to draw matters of law to the attention of a jury by way of warning, direction or comment—and it is common practice—which the jury would then take into consideration when coming to a decision as to the guilt or innocence of a trial defendant. It may not be as critical, or even appropriate, for a judge to draw those matters to the attention of himself or herself in such a specific manner as this amendment contemplates.
There was no discussion on this in the explanatory memorandum, and Mr Corbell’s response to the scrutiny of bills committee paid no heed whatsoever to the committee’s comments. He merely and summarily brushed them off on the basis that a judge-alone trial should be conducted on the same footing as a judge and jury trial. That does not answer the questions that the committee raised.
The effect could be far reaching. If a judgement failed to take account of all the necessary elements, injustice could be brought about simply by technicalities. We need a more complete explanation of the effect of these changes than the attorney has given in his letter to the scrutiny committee, in his explanatory statement or in the presentation speech. The case we are facing today is much the same as in the Attorney-General’s attempt in December last year to slip through significant changes to the Security Industry Act. Here also we have an attempt to slip through what appear to be substantive changes to the Supreme Court Act.
In March I moved a motion, which was passed by the Assembly, which called on the government to use omnibus legislation for changes that are minor and technical in nature and which said that substantive matters should be put forward in stand-alone bills. This amendment is neither minor nor technical. It is, as the scrutiny of bills committee has said, a change of some substance. Further, I object to amendments
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video