Page 5393 - Week 13 - Tuesday, 16 November 2010
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most comfortably in chapter 2 of the code. There are four reasons for this. The first reason is that the proposed defence is intended to operate across a number of different offences. It can therefore be viewed as a general principle rather than a defence that is only relevant to one specific offence. Section 6 of the Criminal Code 2002 states that chapter 2 “contains all the general principles of criminal responsibility that apply to any offence, irrespective of how it is created”. It follows from this that it is sensible to place the proposed defence into chapter 2 of the Criminal Code.
The second reason for placing the defence into the Criminal Code is that the criminal law is constantly evolving as the needs of society change. New offences which criminalise the possession of an item will undoubtedly occur at some point in the future. The placement of the proposed defence in the code will ensure that those involved in the criminal justice system will automatically be covered. This avoids the need to consider a defence for them within any new offence provision.
The third reason is that the new defence will complement section 43 of the Criminal Code 2002 which states that a person is not criminally responsible for an offence if their conduct is excused or justified under a law.
The fourth and final reason is one that is supported by the very rationale which led to the creation of the Criminal Code—that is, clarity of the law. Inserting a lawful possession defence in respect of criminal justice workers in the provision which creates the prohibition adds a level of complexity which is neither necessary nor desirable.
I will turn now briefly to outline the provisions of the proposed defence. Proposed new section 43A(1) of the bill provides that the person will not be criminally responsible for an offence of possessing a particular material or thing if they are able to justify the three limbs of the defence. The first limb is a requirement that the person must be either working for or employed in the criminal justice system. This is intended to include police officers, prosecutors, court staff, judicial officers, defence advocates and experts such as forensic scientists.
The second limb provides for a link between the possession of the particular material or thing and a law enforcement purpose. A law enforcement purpose is further explained in subsection (2) of section 43A to mean that the possession must be necessary for or of assistance in enforcing the law of the commonwealth, state or a territory, monitoring compliance with or investigating a contravention of a law of the commonwealth, state or a territory or the administration of justice.
And the third limb provides that a person must be able to show that the conduct they are engaging in to possess the material or item was reasonable in all the circumstances. This limb introduces an important objective test to ensure that, even when the first two limbs can be satisfied, there is an additional protection against potential misuse.
There is no doubt that the people engaged in every stage of the criminal process perform at times very difficult roles. It falls to the legislature to provide appropriate reassurance and protections against prosecution of such people for simply doing their job. For this overriding reason, the government proposes this new defence of lawful possession, and I commend the bill to the Assembly.
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