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Legislative Assembly for the ACT: 1997 Week 12 Hansard (12 November) . . Page.. 4010..


MR HUMPHRIES (continuing):

That examination has revealed a rather interesting result. To answer Mrs Littlewood's question in part, there are not three jurisdictions that still have this so-called drunk's defence; there are, in fact, four. The ACT has always supported the development of a Model Criminal Code. The former ACT Attorney-General in 1994 took the decision that the code would be introduced only when complete. That is a decision that I support.

The Commonwealth rightly points out that it legislated the Model Criminal Code provisions in 1995, as did code States like Queensland, New South Wales, Western Australia and Tasmania and the Northern Territory. But that legislation has not commenced, Mr Speaker, and will not do so until the turn of the century. My advice is that the Act does not commence until proclaimed by the Governor-General; and, in fact, it has not been proclaimed. If there is no proclamation, the provisions of the Criminal Code at the Commonwealth level are set to commence five years after royal assent. Therefore, the Commonwealth laws to eliminate the drunk's defence in respect of its own laws will not come into effect, will not start to operate, for three more years.

Let us assume that the legislation I introduce tomorrow is passed next month. We will have eliminated the drunk's defence in the ACT three years before it will be eliminated for Commonwealth crimes, despite the lecturing from the Commonwealth about the need for us to get rid of this anachronistic provision. The Federal Attorney-General, Daryl Williams, said on 29 October:

Since 1994 the Model Criminal Code has provided that evidence of self-induced intoxication is not to be considered in determining whether intent existed in basic offences like assault. That approach has been enacted by the Commonwealth ...

That is not the full story, unfortunately. He went on to say:

The use of this defence has sent a disturbing message to those who get intoxicated and engage in violent behaviour. It has given them a supposed excuse for their behaviour when there is no excuse.

He is absolutely right, Mr Speaker; but he needs to make sure that the laws enacted at the Commonwealth level actually start to have effect. Since the Criminal Code Act 1995 was passed, only a small number of offences have been created at the Commonwealth level to which this legislation applies. They include things like making a false declaration in claiming a payment relating to hearing services or offences under the aged care income testing Act, such as providing false information. So, someone who fills in the form incorrectly for a hearing services rebate and who claims that they did not intend to fill it in incorrectly but were too drunk to fill it in correctly will be convicted because the self-induced intoxication defence does not apply to code offences. That is great to know.

Unfortunately, there are a number of Commonwealth offences to which the drunk's defence still applies. Putting to one side quaint offences like treason, sabotage, sedition, treachery, inciting mutiny, assisting a prisoner of war to escape, forming an intent to counterfeit and interfering with a telephone line, there are a number of quite serious offences to which the drunk's defence still applies and has a chance of success.


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