Legislative Assembly for the ACT: 2010 Week 10 Hansard (Thursday, 23 September 2010) . . Page.. 4389 ..
for or of assistance in enforcing a law of the commonwealth, a state or territory; monitoring compliance with or investigating a contravention of a law of the commonwealth, state or territory; or the administration of justice.
To illustrate the government’s intention of what type of work or employment will be covered by this limb of the defence, section 43A(2) of the bill contains examples of conduct for law enforcement purpose. These examples include police investigations, giving legal advice or providing legal representation, carrying out analyses or tests for forensic reasons, and judicial service.
The final and most important limb of the defence is that a person must be able to show that the conduct they were engaging in to possess the material or item was reasonable in all the circumstances. The government is introducing this bill to address concerns from some within the criminal justice system that they may be inadvertently breaking the law by simply carrying out their job. This is because a number of offences on the ACT statute book do not provide a defence to the possession of an otherwise prohibited item if the possession is as a result of intelligence gathering, investigation, prosecution or consideration of a charge.
The Criminal Code Amendment Bill 2010 intends to address this by adding a defence of lawful possession into chapter 2 of the Criminal Code by inserting new section 43A. One view is that if legislation provides for a power to seize an item then there is the implied power to possess that item. Indeed, section 196(1) of the Legislation Act 2001 states:
A provision of a law that gives a function to an entity also gives the entity the powers necessary and convenient to exercise the function.
However, the government is of the view that this will not be sufficient to protect some involved in law enforcement activities. The new section 43A will provide a defence to those people involved or engaged in the criminal justice system who possess an otherwise prohibited item but cannot rely on a specific power to do so, such as the power to seize.
In drafting the defence, officers in my department sought the opinion of officers from ACT Policing, the Director of Public Prosecutions and the Legal Aid Office of the ACT. This consultation was vital to ensure that the defence actually covers the situation highlighted as a concern and does not provide any loopholes to people who think they might be able to rely on this defence
It is not the intention of the government that this defence be available to neighbourhood vigilante groups, do-gooders, or self-styled private investigators. Rather, it is the intention of the government that this defence be available to police officers, public prosecuting authorities, defence advocates, technical experts, court staff, including associates, and members of the judiciary.
The government acknowledges that, technically, the people who will rely on this defence may be committing an offence. But what this bill does is provide a defence to prosecution for those people who can satisfy the court that their possession of a