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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3279..


MR STANHOPE (continuing):

a modern age that puts a premium on access to information that is clear, precise and to the point and can be relied upon for effective action. If we demand that in all other fields of human endeavour, we should demand it of the law and certainly the criminal law.

The code has yet another important advantage. The object of those who first sat down to frame it was to achieve uniformity in the criminal law across the nation. Our lives are no longer confined to the sometimes arbitrary boundaries fixed in the 18th and 19th centuries, and for the ACT, in the early years of the last century. In common with the rest of the globalising world, we are a nation of travellers. It would not be unusual for a person to wake in Canberra at seven in the morning one day, do a few hours of work till the mid-afternoon in Adelaide and sit down to dinner in the evening in Perth. This is a feature of modern Australian life that the criminal law can no longer choose to ignore. The hodgepodge of laws, rules and procedures with which we contend are an unnecessary complexity no longer suited to the way we live.

Chapter 2 and a substantial proportion of the rest of the model criminal code have already been enacted by the Commonwealth. The ACT has already passed a number of parts of the model code, including provisions relating to sexual servitude, bushfires, food contamination and female genital mutilation. We will be the second jurisdiction to enact chapter 2 in its entirety. All other jurisdictions have enacted various parts of the model code, including New South Wales, which also enacted chapter 4 last year. It is clear that uniformity in the criminal law is becoming a reality and the passage of this bill will ensure that it is part of the ACT's reality as well.

Mr Speaker, this bill includes all the material provisions of the criminal code 2001 and will repeal that act to avoid the numbering confusion that often comes with amending an act section by section. The bill also includes a new chapter 1, which is an important part of the codification process because it will effectively eliminate all common law offences in the ACT after it comes into force in January 2006. The reason for the delay is, of course, to allow time to research and examine the common law offences and to determine those to be kept and converted in statutory form in the code.

Chapter 2 of the bill completes the phase commenced last year by incorporating all the principles of criminal responsibility recommended in chapter 2 of the officers' reports. The added clauses concern such matters as the criminal responsibility of children and young persons, the mentally impaired, intoxicated persons and corporations. Provision is also made for the defences, such as self-defence, duress, emergency and lawful authority and part 2.4 sets out the extension offences, such as attempt, conspiracy, incitement and complicity, which was aiding and abetting in the old language. Finally, part 2.7 adds the provisions that give extraterritorial application to ACT offences where there is a relevant connection with the ACT.

Perhaps the most significant addition is new clause 22. It provides a mechanism in the code that allows for the fault elements of intention or recklessness to be applied to a physical element of an offence if strict or absolute liability does not apply and the provision does not say what fault element should apply. For this reason, it is commonly referred to as the default fault element provision.


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