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Legislative Assembly for the ACT: 2016 Week 06 Hansard (Thursday, 9 June 2016) . . Page.. 2006 ..

cannot be prosecuted for the administration of justice offence where doing so would conflict directly with the acquittal. The prosecution will now be able to apply to prosecute the accused for an administration of justice offence in that circumstance.

This is a somewhat controversial area of law. There is a range of views on this, and I note them. They have been expressed in the media and we have certainly sought comment from a range of people in the community, including the Law Society, the Victims of Crime Commissioner and the bar.

One of the issues that has arisen is the issue of retrospectivity. It is fair to say that there are mixed views as to whether this should be applied retrospectively or not. It has been in some jurisdictions and not in others. I understand that it will not be in the ACT. I note that the Victims of Crime Commissioner, Mr John Hinchey, said that the government had taken “an extremely conservative approach” to the double jeopardy principle that was “so conservative” that he thought it rendered the reforms meaningless. He said that the most “disturbing and disappointing” aspect of the reforms was that they would not be applied retrospectively, which meant people acquitted of decades-old crimes could not be retried if new and significant evidence emerged. There is a different view from other groups, including, as I understand it, the Law Society and Civil Liberties.

On balance, noting the issue of retrospectivity and the concerns raised by the Victims of Crime Commissioner, we will be supporting this legislation.

MR RATTENBURY (Molonglo) (8.29): Double jeopardy is a key principle in the English common law system, enshrined in law for several hundred years, and it is also explicitly reflected in the ACT in our Human Rights Act.

The double jeopardy principle essentially provides that a person cannot be tried twice for the same offence. Once a person is convicted or acquitted, the double jeopardy principle ensures that they are immune from further prosecution for that offence, or for a different offence covering the same factual elements.

There are several traditional rationales for the doctrine of double jeopardy. It recognises the seriousness of criminal trials and that innocent people should not be imprisoned. Imprisonment of the innocent is more likely if multiple prosecution attempts can be made. The principle recognises the discrepancy in resources between the state and an individual, and that criminal prosecutions could be used as a means of state oppression against individuals. It demands that crimes are investigated efficiently and that trials are run properly, because there is no opportunity for the prosecution to have another go at it.

The principle also supports the finality of court decisions. High Court justices Gummow and Gaudron explained this in the Carroll High Court case. They said:

Firstly, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct.

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