Page 3712 - Week 09 - Wednesday, 24 August 2011
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This issue has been debated in this place before, but the Canberra Liberals believe now is the time to act. The bill I put forward today is an exposure draft, but I will go through some of the key issues in the bill and the debate that has surrounded it. First, I would like to put to rest a legal myth that has been propagated by the Attorney-General. Mr Corbell is on the record as saying that offences were occurring too often, but the territory government was unable to increase penalties because police in Canberra were treated as officers of the commonwealth.
This is both wrong and troubling. Section 28 of the Australian Capital Territory (Self-Government) Act 1988 provides that if an ACT law is inconsistent with a commonwealth law, it has no effect to the extent that it is inconsistent but shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law. The commonwealth Crimes Act 1914 section 4C(3) provides:
Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.
This means that the ACT can have offences that deal with assaults against police officers. On a more simple legal basis, the territory has the ability to create whatever laws we deem fit for the territory, subject to commonwealth laws and the self-government act. The territory has created and modified many times a comprehensive set of criminal laws for the peace, order and good governance of the territory. This legislation is just another in that suite of solutions. It is very worrying that the Attorney-General does not understand this.
The next issue is: what wrong are we trying to correct here; what gap in the law is evident? Simply, the current laws have been proven at best inadequate and at worst unworkable. Currently there is a choice of a commonwealth offence—that of assault on a commonwealth officer—which is technically difficult to raise and practically impossible to establish, or there is common assault.
The commonwealth law requires three physical elements and three fault elements to be established. Common assault is simpler, but it has previously been indicated by the Assembly that it is a summary rather than indictable offence, giving an indication to the courts that it is a less serious offence. Presently, there is nothing in between. This has resulted in an anachronistic and unsuitable situation that leaves police officers without adequate legal remedy for the seriousness of the assaults. This bill remedies that situation.
The next issue is that of creating a special class of victim. Simon Corbell has previously stated that the intent of the ACT Labor government is not to create a class of criminal offence distinguished by the character of the victim rather than the actions of the offender. But that is not correct either. The territory has passed aggravated offences in respect to pregnant women. These aggravated offences were created in recognition of the fact that, according to that bill’s explanatory statement, some forms of crime are worse than others. Therefore, this bill adds to the list of aggravated offences; it does not create a type of offence that does not already exist.
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